MOHAMMAD AZAM KHAN, CJ. --- The above titled appeal under Section 25 of I.P.L. Arises out of the judgment of the Shariat Court dated 25.5.2012, whereby the revision petition filed by the appellant herein for cancellation of bail granted to accused respondent has been dismissed.
2. Precise facts as alleged by the complainant, Pervaiz Iqbal, in the written report lodged at Police Station Afzalpur on 23.5.2008 at 8:00 p.m. Are that he is resident of village Bider-Awan. Today, between 6:15 and 6:30 p.m. Basharat Ali r/o village Ghasipur called his nephew Ghazanfar Hussain on telephone who went to meet him in the graveyard of Ghasipur, which is located at a distance of 700/800 yards from his house, where Basharat and his brother Tariq were present. They were negotiating with regard to sale/purchase of a motorcycle when a fight took place. He and his brother lmtiaz were watching the scene while standing outside their houses. Ghazanfar Hussain called them. At about 7:00 p.m. They reached at the place of occurrence. Apart from Basharat and Tariq, Sabir Hussain and Khadim Hussain sons of Sahib Dad, Khalid Hussain son of Sabir Hussain, r/o Ghasipur, and Tariq son of Rehmat r/o Dolo Chak, also came there. Tariq Hussain had a pistol in his hand while Tariq son of Rehmat had a 12 bore pump action gun. Sabir, Khalid and Basharat had sticks in their hands. Khadim slo Sahib Dad raised lalkara (')6) to kill them, whereupon Tariq Hussain son of Sabir Hussain fired three shots upon lmtiaz. One bullet hit lmtiaz at right side of the neck while second hit near the right side of neck. The third bullet hit the bicep of his left arm. He fell on the ground. Khalid, Basharat, sons of Sabir Hussain, Khadim Hussain and Sabir Hussain sons of Sahib Dad beat the complainant with sticks. The other people also came at the place of occurrence. Upon this report, a case under Sections 324, 147, 148, 149 and 337, A.P.C. Was registered against the accused respondents. Later on lmtiaz Hussain succumbed to the injuries whereupon Section 302, A.P.C. Was added. The challan was filed against the accused respondent and others in the District Criminal Court, Mirpur.
3. The accused respondent moved an application for grant of bail on 27.8.2011 on the ground that he was arrested on 23.5.2008. After completion of investigation, challan was filed in District Criminal Court Mirpur on 29.6.2008. He is continuously behind the bars for a period of three years and three months and statements of only three witnesses have been recorded so far. Delay in the Trial Court is not caused due to an act or omission of the accused or any person acting on his behalf, therefore, he is entitled for concession of bail. After hearing the counsel for the parties and the Public Prosecutor, the District Criminal Court released the accused on bail on 4.11.2011 on the ground of statutory delay. Dissatisfied from the judgment of the District Criminal Court Mirpur, the appellant filed a revision petition in the Shariat Court of Azad Jammu and Kashmir. A learned Single Judge in the Shariat Court dismissed the revision petition vide impugned judgment on 25.5.2012.
4. Mr. Muhammad Reaz Alam, the learned counsel for the appellant, while arguing on behalf of the appellant, submitted that the judgment of the Shariat Court is against law and the record.
Although the delay in trial has not been caused by or on behalf of accused respondent, but he is not entitled for concession of bail being hardened, desperate and dangerous criminal. The conduct of the accused respondent is such that he is not entitled for concession of bail on the ground of statutory delay. The learned counsel elaborated his point that the fight took place between Ghazanfar and Basharat. The accused respondent was not present at the place of occurrence. As soon as the fight started, he took a gun from his house, came all along running and murdered an innocent person. This conduct of the accused respondent brings him in the category of hardened, desperate and dangerous criminal. He is not entitled for concession of bail. The Trial Court and the Shariat Court have released the accused by illegal exercise of discretion. The learned counsel relied upon a case titled Shokat Ali v. The State and another [Criminal Appeal No. 7 of 2012, decided on 7.8.2012] and requested for cancellation of bail.
5. While controverting the arguments, Raja lnaamullah, the learned counsel for the accused respondent, argued that the judgment of the Trial Court as well as the Shariat Court is perfectly legal. The occurrence is not pre-planned one. There was no pre-meditation. While negotiating on purchase of motorbike, an altercation took place between Ghazanfar Hussain and Basharat which ultimately took the shape of fight. If the version of prosecution is admitted as true, then too it is not a case of pre-meditation or preconcert. The occurrence took place at a spur of moment. The accused respondent does not fall in the category of hardened, desperate and dangerous criminal.
The two Courts below have exercised the discretion in a legal fashion. PLD 1986 Peshawar 92].
6. Mr. Muzaffar Ali Zafar, the learned Additional Advocate-General, while adopting the arguments of the learned counsel for the appellant, submitted that the conduct of accused respondent shows that he is hardened, desperate and dangerous criminal. When the parties started quarreling, he came on the spot while having a gun in his hands and fired upon Imtiaz Hussain who was done to death due to his firing. He not entitled for concession of bail.
7. We have heard the learned counsel for the parties and pursed the record. In the written report the complainant alleged that his nephew, Ghazanfar Hussain was called on telephone by Basharat Ali, near the graveyard of the village which is at a distance of 700 to 800 yards from his house. A fight took place between them on sale/purchase of motorbike. Ghazanfar called them. At 7:00 p.m.
They reached the place of occurrence. Apart from Basharat and Tariq Khadim Hussain son of Sahib Dad, Khalid Hussain son of Sabir Hussain r/o Ghasipur, Tariq son of Rehmat r/o Dalo Chak also came there. Tariq had a pistol in his hand while Tariq son of Rehmat had a 12 bore pump action gun in his hand. Sabir, Khalid and Basharat had batons in their hand.
Khadim son of Sahib Dad raised lalkara e'6) to kill all of them, whereupon Tariq son of Sabir fired three shots with a pistol which hit lmtiaz Hussain.
8. The case of other accused person is not before the Court. We are dealing only with the case of accused respondent, Tariq son of Sabir. Previously appeal No. 2/2011 filed by Perviaz Iqbal, complainant, for cancellation of bail granted to Sabir Hussain, Khalid Hussain, Basharat, Khalid son of Sabir and Tariq Mehmood son of Rehmat was decided on 15.3.2003. In the referred case it has been observed by the Court that the story prima-facie excludes the element of pre-meditation and occurrence appears to have started suddenly. From the role attributed to the accused respondent it has to be determined whether he falls in the category of hardened, desperate and .Dangerous criminal or not.
9. Under Section 497, Cr.P.C., when any person accused of any non-bailable offence is brought before a Court, he may be released on bail but he shall not be so released, if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or for ten years. An offence under Section 302, A.P.C., is punishable to different sentences including the death sentence which falls in prohibitory clause and under the provision if his case appears to be one of further inquiry, the accused may be released on bail. Due to delay caused in the decision of cases, a proviso has been added to Section 497(1), Cr.P.C. In the fifth proviso a further proviso has been added vide Ordinance No. XXIV of 2011 issued on 16.5.2011. It is deemed necessary to reproduce the same:--- "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 a previously convicted offender 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."
A perusal of amended Section 497, Cr.P.C. Reveals that such accused who is involved in the offences punishable with death, is detained for a continuous period exceeding two years and the trial has not been completed and in the opinion of Court delay in trial has not been occasioned by an act or omission of accused or any other person acting on his behalf, shall be released on bail. A further proviso has been added that previously convicted offenders for an offence punishable with death or imprisonment for life or person who in the opinion of Court is a hardened, desperate, dangerous criminal, or accused of an act of terrorism punishable with death or imprisonment for life, shall not be entitled for concession of bail on the ground of statutory delay. In the instant case it is an admitted fact that the accused remained behind the bars for a period of more than 3 years when he moved the bail application on the ground of statutory delay. Cancellation of bail is sought on the ground that the accused respondent falls in the category of hardened, desperate and dangerous criminal. The term "hardened, desperate and dangerous" appearing in the above- referred proviso has been considered and defined by the superior Courts in a number of cases.
In a case reported as Moundar and others v. The State [PLD 1990 SC 934] the effect of proviso has been analysed as under:--- ".... The word "criminal" has not been defined. It will not be proper and indeed would be difficult to define it or give it a specific meaning. However, it is a common word of the English language.
According to the Shorter Oxford English Dictionary the word carries several meanings, including the meaning - a person accused of a crime. In the context of the provisions under construction, we feel that the word cannot be construed in the technical sense, namely, that a formal accusation must be made against the person or that he should have been adjudged guilty of a charge in a Court of law. It appears to have been used in the sense of a person who violates the law of the land. The three adjectives qualifying the word "criminal" may also be examined.
According to the same dictionary the word "harden" has been defined to mean, inter alia, (1) to render or make hard; to indurate, (2) to embolden, confirm, (3) to make callous or unfeeling, and
(4) to make persistent or obdurate in a course of action or state of mind. The word "hardened" has also been defined to mean "made hard, indurated; rendered callous; hard-hearted; obdurately determined in a course".
The same dictionary gives the meaning of the word "desperate" inter alia, in relation to person: driven to desperation hence reckless, violent, ready to risk or do anything.
The same dictionary gives the meaning of the word "dangerous", inter alia, as fraught with danger or risk; perilous, hazardous, unsafe.
These appear to be the meanings intended to be conveyed by the legislature by using the words "hardened, desperate or dangerous criminal".
Accordingly the view taken by Sajjad Ali Shah, appears to be correct and the construction placed by him is in consonance with the intention of the legislature underlying the provision in question in the context of the whole section. In the circumstances we are unable to accept the contention of Mr. Muhammad Rayat Junejo that the facts and circumstances of the prosecution case in which the accused person seeking release on bail is facing trial cannot be taken into consideration. The proposition relied reached upon in support of the contention to the effect that finding in a criminal trial can only be reached upon the assessment of entire evidence produced in the Court, is inapplicable, insofar as the opinion reached by the Court for purposes of the 4th proviso has nothing to do with the findings of the Court at the trial. Indeed the conclusions drawn for the purpose of disposal of a bail application cannot be used to the prejudice of the accused as the same are tentative in nature. However, there is no justification for the argument that such an exercise undertaken by the Court, violates the principle that an accused person is presumed innocent until proved otherwise. In sub-section (1) of Section 497 the legislature has already empowered the Court even before the commencement of the trial to make a tentative assessment of the evidence collected against an accused person or likely to be produced in the trial against him, in order to reach the conclusion whether there appears a reasonable ground for believing that he has been guilty of an offence punishable with death or life imprisonment or imprisonment for 10 years. The provision under consideration here is a proviso to the same sub-section, and, therefore, it will be reasonable to construe it in the same manner authorizing a Court to take into consideration the evidence collected by the prosecution for purposes of determining whether the accused is a criminal of the categories prescribed therein. Of course the Court can take into consideration and indeed in most of the cases it will take into consideration other materials produced by the prosecution in order to show that the case falls within the prohibitions contained in the 4th proviso."
In the case titled Muhammad Siddique v. Muhammad Behram and another [1998 SCR 146] it was observed as under:--- "We have given due consideration to the arguments and perused the authorities cited by the learned counsel for the parties. It may be stated that the mere fact that the accused-respondent allegedly caused two injuries with dagger to the deceased and injured two other members of the complainant party does not, per se, bring him within the purview of 'desperate' or .'hardened' criminal, especially so when he also allegedly sustained two injuries in the incident. While dubbing a person as a 'hardened' or 'desperate' criminal, each case has to be decided in view of the material on the record and not on the basis of mere allegations."
In a case titled Muhammad Aziz v. The State [2000 SCR 1] it was observed as under:--- "We have given due consideration to the matter. We are of the opinion that the question as to whether an accused is hardened, desperate or dangerous criminal within the meaning of the aforesaid proviso is to be seen in light of the circumstances of each case, i.e., (i) the motive for murder, (ii) the part which each of the accused played in the completion of the offence, (iii) prima facie evidence in support of the incriminating act attributed to the accused persons, and (iv) the effects of the act of the accused on the family of victims and on the society at large. Considering the acts attributed to the accused- alongwith other principles indicated above, we are the opinion that in view of the different strings of the prosecution story which, prima facie, implicates the accused-appellants with the commission of offence of murder of five innocent persons. It cannot be said that the acts attributed to them are such that they are not desperate or dangerous criminal persons within the meaning of fourth proviso to Section 497(1), Cr.P.C. It may be stated that the connotation of these words is wide enough to cover the case in hand. A reference may be made to the view taken by the Supreme Court of Pakistan in case reported as Moundar v. The State [PLD 1990 SC 934] referred to above."
In a case titled Abdul Halim v. The State [PLD 1986 Peshawar 92] it was observed as under:--- ...................... 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."
In a case reported as Omair Ahmed Siddiqui The State[1996 P.Cr.LJ. 22] it was observed as under-- - "The word "desperate" is not only used as an adjective but also as a noun. A desperate person may not be hardened person. This aspect can be explained with an example. During the pendency of Zia's Martial Law Regime. The concerned authorities after realising that usurped power was slipping from their hands, took desperate measures by introducing. black laws to arrest advocates, politicians and all other such persons on account of their innocent crimes of working against barbarism of Martial Law. All such usurpees and their disciples belonging to the Martial Law were not falling within the clutches of expression hardened but they were desperate who wanted to keep themselves safe with the usurped power and for that purpose, they never hesitated to assassinate anyone or get the politicians killed. But, as a result of their desperate acts, martyrs became legends. In the light of this example, a desperate, inter alia, means despairing, having no sense to danger, safety or consequences. In criminology if any criminal possesses such qualities, then he should be treated as desperate criminal."
10. After the amendment in Section 497, Cr.P.C. the statute has conferred a right in an accused person; that he shall be released on bail, if the trial has not been concluded within a period of two years and delay in trial has not occasioned due to act or omission of accused or any person acting on his behalf, but an exception has been created that hardened, desperate and dangerous criminal, will not be entitled to get the benefit of aforesaid proviso. The Courts are empowered to make tentative assessm ent of evidence collected against an accuced person likely to be produced during the trial for deriving a conclusion that reasonable grounds appear for believing that the accused is guilty of an offence punishable with death or imprisonment for life or 10 years and the proviso authorizes a Court for determining whether the accused falls in the category of hardened, desperate and dangerous criminal or not. For the purpose the Court has to consider the material placed before it and derive the conclusion from the tentative assessment of said material.
There may be reasonable grounds for believing that the accused is guilty of an offence punishable with death or transportation for life but it is not necessary that on the basis of such grounds the accused is also a hardened, desperate and dangerous criminal. Mere cause of death by firing is not sufficient for declaring an accused as a hardened, desperate and dangerous criminal.
11. From the perusal of F.I.R., statements of witnesses recorded under Section 161, Cr.P.C. And the statements of two witnesses recorded in the Court it is abundantly clear that the occurrence was not a pre-planned one. Basharat and Ghazanfar were negotiating on the sale/purchase of a motor-cycle when an altercation took place. Parties from both sides reached on the place of occurrence and the occurrence took place. While deciding the appeal of co-accused titled Pervaiz Iqbal v. Sabir Hussain and others [Criminal Appeal 2 of 2011, decided on 15.3.2013] it was observed in para 8 as under:--- "8. It may be stated that while deciding the bail application, the F.I.R., statements of witnesses recorded under Section 161, Cr.P.C., the medico-legal report and of course the version put forth by the accused, if any, are to be considered. It is also well-settled law that while deciding the bail application only bird-eye view of the evidence is to be taken. Deeper appreciation of evidence is not permissible but at the same time it is observed that the bail application cannot be decided in vacuum. The record referred to above, whichever is available, is to be considered and after a cursory view of the evidence, the bail application is to be decided. The prosecution case, as disclosed from the F.I.R., is that Ghazanfar was called by Basharat Ali and he went to the graveyard.
They were negotiating about the purchase of a motorcycle. According to the complainant, he alongwith his brother, were standing outside the house, which is at a distance of 700/800 yards from the place of occurrence. A perusal of the statements of witnesses, complainant and the others recorded in the Court reveal that Ghazanfar was called by Basharat Ali and they were negotiating about the purchase of a motorcycle when the occurrence took place. This prima facie excludes the element of pre-mediation. The cornplainant in his Court statement has stated that Ghazanfar and Basharat Ali had been fighting for 15 minutes, before he reached the place of occurrence. He further stated that after reaching of complainant at the place of occurrence, the other accused respondents reached there from eastern side. Similarly Ghazanfar Hussain, witness, stated that during negotiation on purchase of motorcycle, an altercation started between him and Basharat Ali. He called upon his uncle lmtiaz and Pervaiz, Who were standing at their houses. Theli reached on the spot and thereafter Sabir, Khadim Hussain son of Sahib Dad, Khalid son 'of Sabir and Tariq son of Rehmat reached on the spot. Basharat Ali went to his uncle's house and brought a stick. From perusal of the above-referred statements of witnesses prima facie it appears that the occurrence started suddenly. There was no pre-meditation and version put forth by the complainant that the occurrence started in a pre-planned manner is negated."
From the material placed before the Court it proved that there is no enmity between theparties.
The occurrence was not pre-planned. It took place when the parties were negotiating over the sale/purchase of a motorcycle. t Altercation started. And persons from both sides reached the place of occurrence. The deceased was done to death by firing, but from the record the act of accused-respondent does not appear to be that of hardened, desperate and dangerous criminal.
12. We have considered the judgment titled Shokat Ali v. The State and another [Criminal Appeal No. 7 of 2012, decided on 7.8.2012] relied upon by the learned counsel for the appellant. The facts of the referred case were quite different. The accused in the referred case was not declared entitled for concession of bail on the ground of his conduct. In the referred case the accused wanted to marry the daughter of the complainant, who was refused herr hand and she was married with another person. At the day of marriage, the accused armed with a Kalashinkov came at the house of complainant. He indiscriminately started firing in the house. The wife of complainant was killed by the firing. The brother-in-law of the complainant, Maqsood, tried to stop the accused. The accused Indiscriminately fired upon Maqsood, who died on the spot. Two Courts below declared that the accused is not entitled for concession of bail on the ground of his conduct. This Court also dismissed the appeal of accused with a direction to the Trial Court for decision of case within a period of four months. The referred case has no relevancy with the instant case.
13. Two Courts below after perusal of record have reached the conclusion that the accused is not a hardened, desperate and dangerous criminal. This Court normally does not interfere in the discretion exercised by two Courts below provided the discretion has been exercised in a lawful manner.