1. ' IFTIKHAR HUSSAIN BUTT, J.---The petitioner is facing trial in Crime No,33 of 2007 Police Station Afzalpur, under sections 302 and 448, APC. He applied for bail before learned District Criminal Court Mirpur on the ground of statutory delay but his prayer was refused vide its order dated 22-8-2011.
2. He has now approached this Court by filing revision petition against the aforesaid order.
3. ' The facts briefly stated are that Abdur Raul, complainant, stated before the Police on 2-3-2007 at 11-00 p.m. That on the same day at 5-00 p.m. The marriage ceremony of his daughter Fiaza completed and at 9-00 p.m. He was present at home along with his brother Hanif Khan. The lights were on. Meanwhile, Shaukat accused armed with a Kalashnikov arrived there, who wanted to marry his daughter but he refused to do so, therefore, the accused was annoyed with him. The accused entered the house armed with a Kalashnikov with the intention to kill him and his daughter. His daughter was present in the house. His wife Mst. Abida stopped the accused to enter in the house, thereupon, he with the intention to kill started indiscriminate firing with the Kalashnikov. The bullets hit her wife on her chest who fell down and died instantaneously. The accused fled away. On the way, the accused found Maqsood his brother-in-law, who tried to stop him but he also fired at him with the intention to do away with his life. The bullet hit Maqsood on his front side, who also fell down and died instantaneously. Shaukat, accused while firing shots fled away. The occurrence was witnessed by AbdurRauf, complainant and his brother Hanif Khan. The motive behind the occurrence has been stated to be family dispute. The accused was annoyed with the complainant and his family because they refused to marry Mst. Fiaza with him.
4. ' On this statement, a case under sections 302 and 448, APC was registered. After necessary investigation, accused-petitioner was sent to face trial before District Criminal Court Mirpur whereby the evidence of 4 prosecution witnesses have been recorded.
5. ' Shujah Haider Lodhi, the learned counsel for the petitioner argued with vehemence that the accused-petitioner is behind the bars for the last more than two years and his trial has not concluded. The learned counsel further contended that the period of detention has not been challenged by the prosecution; therefore, the only point which is to be resolved i.e, whether the occurrence was done in a brutal manner or the accused-petitioner is a hardened, desperate and dangerous criminal. According to the learned counsel, although the accused is involved in a case of double murder but he has neither killed the deceased in a brutal way by cutting their bodies into pieces nor dragged the dead bodies in order to disgrace the deceased and other members of the family; therefore, it cannot be held that the accused is a hardened, desperate and dangerous criminal but the trial Court fell in grave error while refusing bail to the accused on statutory ground.
6. In support of his contentions, the learned Counsel cited the following case-law:--
(i) An unreported judgment of this Court titled Hafiz Khalil Ahmad v. The State (Criminal Revision Petition No,109 of 2011 decided on 17-12-2011.
(ii) An unreported judgment of this Court titled Naeem Hussain v. The State (Criminal Revision Petition No,68 of 2001 decided on 14-11-2011.
(iii) An unreported judgment of this Court titled Muhammad Waseem v. The State and another (Criminal Revision Petition No,102 of 2011 decided on 16-11-2011.
(iv) 1990 PCr.LJ 60 Karachi.
7. ' Muhammad Riaz Alam, the learned counsel for the complainant controverted the arguments advanced by the learned counsel for the accused-petitioner and submitted that the accused- petitioner committed double murder while firing with Kalashnikov in a brutal and atrocious manner. The learned counsel also contended that the powers conferred by the amending Ordinance shall be exercised if an accused is not found a hardened, desperate or dangerous criminal. The learned Counsel further mentioned that the Court below has rightly refused the concession of bail, which may be maintained.
8. ' In the light of arguments addressed at Bar, I have carefully perused the record. The bare reading of F.I.R shows that the accused-petitioner in a preplanned manner armed with Kalashnikov in order to take revenge from the complainant for not marrying his daughter to the accused on the very day 'Rukhsati' of Mst. Fiaza, trespassing his house committed double murder in a brutal and desperate manner while making indiscriminate firing with a Kalashnikov, which shows his intention of being desperate and dangerous criminal. My aforesaid view finds support from a case tilted Jalal v. Allah Yar (1993 SCM R 525) wherein while describing a hardened, desperate and dangerous criminal, the apex Court observed that if the accused-person kills the deceased in a brutal way by cutting his body into pieces or by indiscriminate firing of Kalashnikov (underlining is mine) or by disgracing the dead body of the deceased or other members of the family, then taking into consideration the manner of, commission of the offence, the accused can be held to be a hardened, desperate and dangerous criminal.
9. ' As held earlier the manner of occurrence shows that the petitioner has killed two innocent persons in a brutal and atrocious manner to take revenge from the complainant for not marrying his daughter Mst. Fiaza to him; thus, he is not entitled to the concession of bail under the statutory law, which is reproduced to facilitate the matter as follows:-- "Amendment of section 497, Act V of 1898.---In the said Code, in section 497, in subsection (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.
10. "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. "
11. ' So far as the case-law cited by the learned Counsel for the, accused-petitioner is concerned, is quite distinguishable from the facts of the instant case, for instance.
12. ' In Muhammad Waseem's case (Criminal Revision Petition 102 of 2011 decided by this Court on 16- 11-2011), no eye-witness is available.
13. ' In Hafiz Khalil Ahmad's case (Criminal Revision Petition No,109 of 2011 decided by this Court on 17- 12-2011), no eye-witness is available and the case rests upon circumstantial evidence.
14. ' In Naeem Hussain's case (Criminal Revision Petition No,68 of 2001 decided by this Court on 14-11- 2011), the allegation of double murder has been attributed to two different persons and each of the accused have been alleged for making single fire on the deceased-persons. Thus, all the three cases mentioned above do not render any help to the accused-petitioner being distinguishable from the facts of the present case.
15. ' In Miskeen Shah's case (1990 PCr.LJ 60), the bail was granted to the accused on the ground of inordinate delay in disposal of case wherein the accused was not found a hardened; desperate or dangerous criminal.
16. ' As far as Moundar and another's case (PLD 1990 SC 934) referred to by the learned counsel for the complainant is concerned, has been followed in Jalal's case above-mentioned; thus, does not need any detailed analytical survey.
17. ' In such state of affairs, the trial Court has exercised its discretion in a legal fashion, which does not warrant any interference by this Court.
18. ' For the reasons listed above, finding no force in this revision petition, it is hereby dismissed.