Ameer Zaman, the petitioner is facing trial in a case registered against him in offences under Sections 302, 324 & 34, APC read with Section 13/20/65 Arms Act, filed an application for bail on the ground of statutory delay but his prayer was declined vide order dated 19.10.2011 and now he has approached this Court for grant of bail.
The brief facts of the case are that the complainant lodged an F.I.R. on 13.09.2006 at 1:00 p.m. that his brother Jalal Din was leveling his land by bulldozer whereby the complainant was also grazing his cattle. Meanwhile Shaban, Mir Zaman and Muhammad Elahi armed with hatchet and pistol arrived at place of occurrence. They started firing with pistol. Mir Zaman fired a shot which hit Jalal Din who fell down thereafter Shaban inflicted an injury to him with hatchet and also started firing with pistol. Muhammad Elahi has been raising lalkaras to do away with their lives. The occurrence was witnessed by the driver of bulldozer and some other persons.
On this report, a case under Sections 302, 324 & 34, APC read with Section 13/20/65/ Arms Act was registered at Police Station Dudyal.
2. PLJ 1994 Cr. Cases (Peshawar) 102.
3. 1998 SCR 146.
Conversely, Khalid Rashid Chaudhary, the learned Counsel for the complainant submitted that the prosecution has not challenged the period of detention of the accused however the petitioner is a hardened, desperate and dangerous criminal therefore, not entitled to the concession of bail. The learned Counsel further agitated that the occurrence took place in broad day light in a preplanned and brutal manner; therefore, the concession of bail was rightly refused to the petitioner by the Court below. The learned counsel defended the impugned order on all counts. In support of his contentions the learned Counsel cited the following authorities:--
1. 1996 P Cr.L J 748 Lahore.
2. 2001 P Cr.L J 895 Sh.0 AJ&K.
Mahmood Hussain Chaudhary, the learned Asst. A.G for the State fully owned and supported the arguments raised by the learned Counsel for the complainant.
In support of revision petition, Raja Inamullah Khan, the learned Counsel zealously argued that the accused-petitioner is detained behind the bars for more than 5 years and in this regard the trial Court has also held that the delay in trial has not occasioned by any act of the accused-person however the bail was withheld being accused of desperate and hardened criminal, whereas according to the facts of the case the accused-petitioner is neither a desperate nor a hardened criminal. The learned Counsel further contended that the perusal of the relevant record shows that the disputed land is in possession of the accused party wherein the deceased committed a criminal trespass. The learned Counsel maintained that no element of premeditation is found in the light of the facts and surrounding circumstances of the case. The accused is neither a previous convict nor the murder was committed in a brutal manner. According to the learned Counsel there is no allegation of dragging the dead body or cutting the body into the pieces therefore, the accused-petitioner is entitled for concession of bail, under the relevant law. In support of his contention the learned Counsel referred to me the following authorities:-- I have very carefully attended to the submissions made at the bar in the light of the material available on the record.
In order to appreciate the contention of the learned Counsel, it will be fruitful to examine the amending Ordinance No, XXIV/11:-- "Amendment of Section 497, Act V of 1898.--In the said Code, in Section 497, in sub-section (1);
(i) In the first proviso, after the word "years" the words "or any woman" shall be inserted;
(ii) The second, third and fourth provisos shall be omitted; and (iii)In the fifth proviso, for the full stop at the end a colon shall be substituted and thereafter, the following provisos shall be added: "Provided further that the Court shall, except when it is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail:--
(a) Who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year or in case of a woman exceeding six months and whose trial for such offence has not concluded; or
(b) Who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and in case of a woman exceeding one year and whose trial for such offence has not concluded.
"Provided further that the provisions of the foregoing proviso shall not apply to the previously convicted offenders for an offence punishable with death or imprisonment for life or to a person who in the opinion of the Court, is a hardened, desperate, dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life."
As the bare reading of the above mentioned amending section shows that a person being an accused of an offence punishable with death, has been detained in such offence for a continuous period exceeding two years is entitled to be released on bail provided the trial is not concluded within the aforesaid period. As held earlier, the learned Counsel for the complainant has not disputed the period of detention and it has also been pointed out by the Court below; thus, the only dispute between the parties remains whether the accused-petitioner is a hardened and desperate criminal. A careful perusal of the facts of the case shows that neither the offence was committed in a desperate manner nor the petitioner can be held as a hardened, desperate and dangerous criminal. Nothing has been proved on the record to show that he has been previously convicted. It has been rightly observed in Muhammad Siddique's case (1998 SCR 146) that to bring a person within the purview of desperate or hardened criminal, each case has to be decided in view of the material on the record and not on the basis of mere allegation.
The learned Counsel for the petitioner has referred to me Jalal's case (1993 SCNIR 525). In this regard, the basic case is reported as Muhammad Hanif Vs. The State (PLD 1986 Karachi 437). The aforesaid view was approved by the Apex Court in a case tilted Moundar and others Vs. The State (PLD 1990 SC 934), in the following manner at Page 940 of the report:-- "If a bare charge is allowed" to be a proof for a person declaring him a hardened criminal and desperate character, there can be no end to such allegations and there will be no way for a person innocently charged in certain cases. The levy of a charge is somewhat different than to prove it.
Unless a person is proved to be guilty and he is convicted thereunder and all the superior forums keep the verdict of conviction intact it cannot be said that the person is a previous convict. If, however, there is nothing against a person except the bare allegation or a mere charge for all intents and purposes he is presumed to be as much a responsible citizen as others of soft character."
In Moundar's case the full bench of the Supreme Court of Pakistan allowed concession of bail to the accused persons who were involved in an occurrence in which four persons were killed and one was seriously injured.
The view was further approved in Jalal's case (1993 SCMR 525), referred above wherein it was opined that according to F.I.R the applicants alongwith co-accused committed double murder but the Apex Court held that allegation attributed to the accused "do not indicate that they were disparate, hardened or dangerous criminals. If the above respondents could have killed the deceased in a brutal way by cutting the dead bodies into pieces or indiscriminately firing by Kalashnikovs or would have dragged the dead bodies in order to disgrace the deceased and other members of the family. One could argue that the manner of commission of offence was such which indicated that the respondents were hardened, desperate and dangerous criminals in terms of four proviso to sub-section (1) of Section 497, Cr.P.0 but this is not the case.
As far as the case law cited by the learned Counsel for the complainant is concerned, has nothing common with the facts of the present case. In Muhammad Asir s case [2001 PCr.LJ (Sh.C. AJ&K)
8951 the bail was refused on the statutory ground to the accused because at that time in the relevant law the word "may" was used in 3rd proviso of amending Ordinance whereas in the present amending Ordinance No, XXIV/2011 the word "shall" has been used which clearly indicates the will of the legislature to empower the Courts to grant bail to those accused who were neither previous convict nor hardened, desperate and dangerous criminals or involved in act of terrorism.
As mentioned earlier, the petitioner is neither a desperate, hardened and dangerous criminal nor involved in any act of terrorism. His period of detention has exceeded two years and his trial has not concluded. Moreover, the statements of eight P.Ws are yet to be recorded by the trial Court but the Court below failed to appreciate the factual as well as legal position of the case; therefore, the discretion exercised by the Court below is arbitrary and erroneous which is not sustainable.
For the reasons listed above, I accept the revision petition, set-aside the impugned order dated 19.10.2011 and allow bail to the accused-petitioner. He shall be released forthwith on furnishing bail bonds in sum of Rs, 30, 00,000/- (Thirty Lac) with two sureties and personal bond in the like amount to the satisfaction of any member of Tehsil Criminal Court, Dudyal. If the needful is done, the accused-petitioner shall be released forthwith provided not required in any other case or offence.