1. ' MUHAMMAD MUSHTAQ CHAUDHARY, J.---Through this revision petition, the accused-petitioners seek bail on the ground of statutory delay in trial, which was declined to than by Additional District Court of Criminal Jurisdiction Rawalakot vide its order 28-11-2012.
2. ' The facts giving rise to this revision petition are that Muhammad Shafique, complainant, lodged a written report at Police Station Thorar on 26-8-2010 alleging therein that on the same day at 7:30 p.m. Accused-persons Zaffar Mahmood son of Muhammad Aziz, Safdar Mahmood son of Zaffar Mahmood Khan, Nishad son of Raj Khan, Imtiaz son of Resham Khan, Shaukat alias Bhutto and Nazakat Hussain sons of Mirzaman Khan r/o Tain, Shafqat son of Muhammad Anwar Khan r/o Nar, Nishad Ahmad son of Muhammad Khan r/o Tain-Bandi, Muhammad Asif son of Muhammad Naseem r/o Tain-mare, who were armed with lethal weapons Kalashnikovs, having common intention entered into the house of his brother-in-law Muhammad Hanif son of Muhammad Akber Khan. Accused Saqib was also with them. Zaffar Mahmood, accused, fired shots upon Muhammad Hanif with the intention to kill him. Nishad, accused, fired shots with Kalashnikov upon Mst. Ulfat Begum w/o Muhammad Hanif. Safdar, accused, fired shots upon Mst. Mehnaz Khatoon d/o Muhammad Hanif, whereas Imtiaz, accused, fired shots upon Ehtisham son of Ikram. All the victims died on the spot. Thereafter, all the accused-persons entered the house of Muhammad Ashraf
(late) son of Muhammad Akber. Nisar Ahmad, accused, fired shots at Mst. Jannat Begum with the intention to kill her, who also died on the spot, whereas Muhammad Asif, accused, fired at Mst.
3. Shakeela d/o Muhammad Ashraf, who sustained injuries. Besides this, all the accused-persons fired at Rasheed son of Abbas with the intention to kill him, who escaped himself by fleeing away.
4. The accused-persons committed this incident with the consultation and abetment of Muhammad Sadiq Khan son of Muhammad Feroz Khan r/o Tain, Nishat Akber son of Muhammad Akber Khan r/o Nar, Muhammad Anwer son of Mitha Khan Caste Sudhan r/o Nar, Mst. Raj Khan, Mst. Lal Jan w/o Raj Khan r/o Tain-Kakra. The occurrence was witnessed by Yameen, Rasheed, Mst. Farzana and Mst.
5. Shakeela. Besides them, many other people of the village also saw the accused-persons armed with weapons and fleeing away. The accused-persons, after the occurrence, went towards Sonkakra and also fired shots upon the house of Lal Khan son of. Mir Akber Khan. The accused- persons, with the help of Nadeem, son of Guldad Khan and Muhammad Riaz son of Gulshad Khan r/o Tain, fled away while making firing.
6. ' The motive behind the occurrence has been stated to be previous enmity between the victims and accused-persons over the murder of Nisar Khan, deceased, who was done to death five months ago.
7. ' On this report, a case under sections 302, 324, 458, 147, 148, 149, 109 and 34,APC was registered against the accused-persons.
8. ' Khan and Shafqat Anwer, the present accused-petitioners, applied for bail on statutory ground of delay in trial before Additional District Court of Criminal Jurisdiction Rawalakot on 27-8-2012 and 5- 9-2012 respectively, whereby the concession of bail was declined to the accused-petitioners vide a consolidated order dated 28-11-2012. It is the aforesaid order which has been assailed through this revision petition.
9. ' Barrister Hamayuh Nawaz Khan, the learned counsel for the accused-petitioners vehemently argued that after the amendment in section 497, Cr.P.C., the accused-petitioners are entitled to the concession of bail on statutory ground as they are behind the bars for the last more than two years and the delay in conclusion of trial is not on the part of the accused-petitioners as they were in jail, rather delay has been occurred on behalf of the prosecution or co-accused. He further contended that delay in conclusion of the trial on the .Part of the other co-accused persons cannot be held responsible for the petitioners and the learned trial Court has wrongly held that delay in conclusion of trial has been caused by the co-accused. The learned counsel further argued that the Court below has wrongly relied upon the judgment of this Hon'ble Court cited in 2012 YLR 2095 wherein delay in conclusion of trial was caused by the accused petitioner himself not by the co-accused.
10. Lastly, learned counsel prayed that the impugned order may be set aside and accused-petitioners be released on bail.
11. ' Conversely, Sardar Suleman Khan, the learned counsel for the complainant, vehemently opposed the revision petition and argued that the bail application has been rightly dismissed by the learned trial Court on merits as well as on statutory ground. The learned counsel argued that accused- petitioners are involved in the brutal murder of fire persons. The learned counsel further argued that accused-petitioners murdered two persons and abetted in the murder of three persons.
12. According to the learned counsel delay in conclusion of trial occasioned by the accused- petitioners themselves and their co-accused-persons. He also placed on record some interim orders sheets of the trial Court. He zealously argued that manner of occurrence and role of the petitioners and their character does not deserve any concession for bail.
13. ' I have heard the learned Advocates for the parties and gone through the record.
14. I am cognizant of the fact that at bail stage deeper appreciation of the merits of the case is not permissible rather a tentative assessment of the evidence collected by the investigation agency and statements recorded by the Court below has to be made.
15. ' The instant revision petition pertains to bail after arrest on the statutory ground in the offences under sections 302, 324, 458, 147, 148, 149, 109 and 34,APC. The accused-petitioners firstly approached the Additional District Court of Criminal Jurisdiction Rawalakot for bail after arrest, whereby the concession of bail was declined to them and now they have approached this Court on several grounds including the ground of statutory delay in trial.
16. There is no cavil with the fact that an accused can claim bail on the ground of statutory delay in trial, but it is incumbent upon the Courts to determine the heinousness and gravity of offence while allowing bail to an accused. No doubt accused-petitioners can claim bail under the amendment of section 497,Cr.P.C. After detention of two years, but in the same amendment the following words have been used:-- ' "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 which death or imprisonment for life."
17. ' In afore quoted lines, the words "or to a person who, in the opinion of the Court, is a hardened, desperate, dangerous criminal" clearly show discretion of the Court to refuse bail to a hardened, desperate or dangerous criminal. In the light of above discretion, a Court can refuse bail to an accused whether he has suffered any previous conviction or not and whether he has been previously adjudicated to be guilty or not. My aforementioned view finds support from a case reported Qadir Bux v. The State 1986 PCr.LJ 2184 whereby, in a case of robbery, bail application was dismissed and it was held by the learned Judge as under:-- "In this view of the matter in my humble opinion it would be open to the Court to examine each case on its own facts. If the accused person applying for bail has during commission of crime shown extra-ordinary and unusual courage and determination and has exhibited a beastly and cruel instinct of character, he can be described as "desperate and dangerous criminal" and the Court can refuse to admit him bail whether he has suffered any previous conviction or not and whether he has been previously adjudicated to be guilty or not?"
18. Coming to the instant case, five innocent persons have been murdered in this case. The allegation against Nishad Khan, accused-petitioner No,1 is that he fired shots with Kalashnikov at Mst. Ulfat Begum who died on the spot instantaneously. Therefore, the manner of occurrence, in which five innocent persons were murdered in a brutal manner itself, prima facie, involves accused petitioner No,1 with the commission of offence because he along with co-accused (not before me) created panic for the society. Thus in my opinion, the manner of occurrence is a dangerous one and the role played by accused-petitioner No,1' during the occurrence is not ordinary; therefore, he can be subscribed as hardened, desperate of dangerous criminal. In this view of the matter the amended provisions of section 497, Cr.P.C. Shall not apply to him. Moreover, the evidence of the prosecution witnesses is being recorded by the trial Court. I have given a bird eye view to the evidence recorded by the trial Court and also gone through the impugned judgment and do not find any illegality in the impugned order 28-11-2012; therefore, the Additional District Court of Criminal Rawalakot has rightly refused bail to accused-petitioner No, 1.
19. ' So far as the case to the extent of Shafqat Anwer, accused-petitioner No,2 is concerned, according to F.I.R., a general type of allegation has been levelled against him that all accused-persons were armed with Kalashnikovs, hiving common intention, entered the house of Muhammad Hanif. It reveals from the perusal of F.I.R. That no specific role has been attributed to Shafqat Anwer, accused petitioner No,2; therefore, he is entitled to the concession of bail.
20. ' As far as the authorities cited by the learned Advocates for the accused-petitioners are concerned, these are distinguishable from the facts of present case therefore, need not to be discussed.
21. ' Resultantly, I partly accept this revision petition to the extent of Shafqat Anwer, accused-petitioner No,2, and he is allowed bail in sum of Rs,10,00,000 lac) with one surety in the like amount to the satisfaction of any Magistrate 1st Class Rawalakot provided not required in any case or offence, whereas the revision petition to the extent of Nishad Khan, accused-petitioner No,1 stands dismissed. The revision petition is disposed off in the terms indicated above.