RAJA SAEED AKRAM KHAN, J. --- This appeal has been directed against the judgment of the Shariat Court dated 17.12.2012, whereby Criminal revision petition filed by respondent No. 1 against the order of the District Criminal Court, Bhimber dated 12.10.2012 has been accepted and he has been allowed to be released on bail.
2. The relevant facts arising out of this appeal are that an FIR was registered at Police Station, Bhimber on 14.10.2007 on the complaint of Shaukat Aziz, appellant in the offences under sections 302, 147, 148 and 149, A.P.C., in which the accused-respondent was nominated as principal accused.
The allegation levelled in the FIR is that the accused-respondent with the intention of murder, fired straight shot with 12-bore gun, upon Jawad Siddique, who later on, succumbed to the injuries. The other co-accused were also mentioned in the FIR, who participated in the occurrence alongwith the principal accused in furtherance of common intention. The occurrence is stated to be witnessed by Jabran and Ghulam Qadir. The motive behind the occurrence is stated to be previous enmity between the parties and it was stated to be pre-planned and premeditated occurrence.
3. After registration of case, the accused were apprehended by the Police and after completion of the investigation, challan was presented before the District Criminal Court, Bhimber on 25.2.2008.
The Trial Court examined 15 witnesses out of 26 witnesses cited in the challan, when the accused- respondent moved an application for release on bail before the District Criminal Court, Bhimber on the ground of statutory delay, which was refused by the said Court vide order dated 12.10.2012.
Feeling aggrieved from the order of District Criminal Court, Bhimber, the accused-respondent preferred a revision petition before the Shariat Court on 13.11.2012. The learned Shariat Court vide its order dated 17.12.2012 accepted the revision petition filed by the accused-respondent and he was ordered to be released on bail. Hence this appeal.
3. At the very outset, Mr. Khalid Rasheed Chaudhary, Advocate, the learned counsel for the complainant-appellants, very frankly argued that there is no dispute regarding the statutory period of delay in conclusion of trial, however, despite that the accused who is involved in a heinous offence cannot be released on bail on statutory grounds. He further argued, that the judgment of the Shariat Court is not based on correct application of law. He submitted that the accused-respondent acted in a desperate manner, who was armed with 12-bore gun and fired the straight shot which hit at the chest of the deceased. He contended that the learned Shariat Court committed a grave illegality, while not taking into consideration the law on the subject that the case of the accused-respondent is fully covered under the 4th proviso to sub-section (1) of section 497, Cr.P.C. He further submitted that the accused-respondent is a desperate, hardened and dangerous criminal and such-like accused is not entitled to get the concession of bail inspite of the fact that the statutory period has been elapsed. He further contended that the occurrence took place on the day of 'Eid', which was a pre-planned and premeditated. The FIR was promptly lodged.
The learned counsel submitted that it was a broad daylight occurrence, therefore, there was no possibility to falsely implicate any person. He argued that the occurrence was witnessed by two eye-witnesses and the accused-respondent was duly nominated but all these aspects of the case have not been taken into account by the Shariat Court, while passing the impugned judgment. The learned counsel further argued that the accused-respondent alongwith co-accused made a murder assault in the result of which an innocent person lost his life. The recoveries of six crime- empties also made by the Investigating Officer from the place of occurrence, which itself shows that the accused-respondent acted in a desperate manner and by doing so the accused created the sense of fear and insecurity among the people. He submitted that the conduct of the accused- respondent is also very relevant that after committing the offence he remained absconded for about two and a half years. He further submitted that such-like persons who remained fugitive from law are not entitled to get any discretionary relief. The learned counsel contended that the Shariat Court failed to exercise its discretion in a legal manner.
4. On the other hand, Mr. Muzaffar Ali Zaffar, the learned Additional Advocate-General for the State, also addressed the arguments on the same pattern as adopted by the counsel for the appellants.
He submitted that the accused-respondent was duly nominated in the FIR with a specific role. It was a pre-planned occurrence and the concession of bail on the statutory grounds cannot be extended to a person, who acted in a desperate manner. He argued that there is no denial on the part of the accused-respondent that inspite of the lapse of statutory period, the trial could not be concluded.
5. Mr. Kamran Tariq, Advocate, the learned counsel for the accused-respondent, argued that no element of brutality is available and the question of desperate, hardened and dangerous criminal does not arise. He argued that the prosecution failed to establish that it was a pre-planned occurrence. He further contended that the trial could not be concluded despite the lapse of a period of two years and five months. He contended that the delay in concluding the trial has not been occasioned on behalf of the accused, therefore, the right of concession of bail on the statutory ground was accrued to the accused, which cannot be denied. The learned counsel argued that the order passed by the Shariat Court is perfect and legal, which does not warrant any interference. He lastly argued that once a bail has been granted by a Court of competent jurisdiction the same cannot be cancelled without any cogent reason. There must be strong reasons for cancellation of the same. He has relied upon the case reported as Muhammad Arif Khan v. Zahid Hussain & another [2009 SCR 484].
6. We have heard the learned counsel for the parties at some length and also perused the impugned judgment alongwith the other material made available. The main thrust of the argument of the learned counsel for the complainant-appellants is that the accused-respondent was not entitled to be released on bail on the ground of statutory delay as he is a hardened, desperate and dangerous criminal. From the record, it is spelt out that after submission of challan, the prosecution examined 15 witnesses out of 26 witnesses, however, the trial could not be concluded after the lapse of more than two years and five months. When such situation arises then 4th proviso to sub-section (1) of Section 497, Cr.P.C. Comes into operation, which reads as under:- "497. When bail may be taken in cases of non-bailable offence.---(1) When any person accused of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station; or appears or 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 imprisonment for ten years.
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 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."
7. 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 an accused or any other person acted on his behalf, direct that any person shall be released on bail, who being accused of offence not punishable with death has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded. However, a clog has been imposed that a person, who, being accused of an offence, punishable with death has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not been concluded shall not be released on bail if he is a convicted offender for an offence punishable with death or imprisonment for life or an accused, who in the opinion of the Court is a hardened, desperate and dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life. It is clear from the above that the hardened, desperate and dangerous criminal is not entitled to get the concession of bail on statutory ground of delay in conclusion of the trial. The element of hardened, desperate and dangerous criminal can be ascertained from the previous record of the accused or by manner of occurrence committed by him and the allegations levelled against him in the FIR as laid down in a case reported as Sher Ali alias Sheri v. The State [1998 SCJ 145], wherein it has been held as under:--- "10. The above case-law indicates that under the third proviso to sub-section (1) of Section 497, Cr.P.C. An accused is entitled to bail as a matter of right if the statutory period mentioned either in clause (a) or clause (b) has expired and the trial has not been concluded in view of the use of the word 'shall'. This right can be defeated only if the State or a complainant shows that the delay in trial is attributed to the accused person concerned. Once it is shown the above right is forfeited.... "
In another case reported as Muhammad Siddique v. Muhammad Behram & another [1998 SCR 146], this Court observed as under:- .................. 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..."
Similarly, in a case reported as Omair Ahmed Siddiqui v. The State [1996 P.Cr.LJ. 22], it was observed as under:- Intention of the legislature by using the word 'or' in the fourth proviso clearly reflects that not only the adjectives hardened, desperate or dangerous used with the word 'criminal' be construed independently but the accused be also denied bail if he/she falls within the clutches of one or more than one adjectives. It is commonly known to all that whenever any provision of law is introduced in any stature by the legislature, then several terms used in it are usually defined in the Stature if the legislature wants to give them specific meanings."
In an unreported judgment of this Court titled Subedar Muhammad Azam v. Lmran Hussain alias Mani & others (Criminal Appeal No. 48 of 2011, decided on 21.12.2013), the question of hardened, desperate and dangerous criminal have been interpreted in the following manner:- "9. The manner of occurrence is also an important factor to declare any person hardened, desperate and dangerous criminal. In a recent judgment titled Jahanzeb v. State and others (Criminal Appeal No. 48 of 2012) this Court has also relied on a judgment of Pakistan jurisdiction titled Jala v. Allahyar & another [1993 SCMR 522] wherein it was observed that the manner of commission of offence is very much necessary to be considered while declaring an accused as hardened, desperate and dangerous criminal. In view of the principle laid down in the supra judgment it can safely be said that the case of the accused-respondent does, not fall under the terms hardened and desperate. However, as we have observed earlier that the term dangerous criminal' is quite different and in view of the meanings referred to above, the case of the accused- respondent can securely bring in the purview of dangerous criminal. As according to the definition referred to above the person who creates a sense of insecurity, panic and unrest in the society can be called a dangerous criminal. From the criminal history of the accused it appears that they previously\ convicted, therefore, it cannot be said that their case does not cover in the terms hardened, desperate and dangerous criminal."
After detailed survey of the case-law referred to hereinabove, it may be observed that while attending the question whether the accused is hardened, desperate and dangerous criminal shall take into consideration the following three factors; (i) previous record of the accused which may include his earlier prosecution, (ii) the nature of accusation and conduct of the accused at the time of alleged occurrence, which has been committed in a heinous manner, and (iii) the element of brutality indicated that the accused were hardened, desperate and dangerous criminal and such act of the accused amounts to terrorism and such act of the accused created a sense of fear or insecurity among the public at large.
8. We have given our utmost thought to the case in hand, whether the accused who has been conferred a right of bail under the statutory provisions can be denied of such right merely on the allegation that he has acted in a brutal manner or he is hardened, desperate and dangerous criminal, we have to look the material brought on the record against the accused. After going through the allegation levelled in the FIR against the accused, it is spelt out that the occurrence took place due to the enmity and a motive has been established by the prosecution. The alleged occurrence has taken place on the main gate of the house of the complainant, meaning thereby that the occurrence did not take place at a public place, therefore, the element of sense of fear or insecurity among the public does not arise and the allegation that he was armed with 12-bore gun and fired on the chest of the deceased also does not show the element of any brutality. The elements of pre-requisite to ascertain whether a person is hardened, desperate and dangerous criminal are missing in the instant case.
9. We are unanimous on the point that the case of the accused-respondent does not come within the purview of hardened, desperate and dangerous criminal as provided in (4) proviso to sub- section (1) of Section 497, Cr.P.C. Mere allegation that the accused was involved in a heinous offence does not disentitle him to bail on the statutory grounds, which conferred upon him a right to be released on bail. Admittedly, the trial could not be concluded due to the delay occasioned on the part of the prosecution and this fact is not denied by the other side. In this situation, we do not think that the learned Shariat Court has passed the order in an arbitrary manner, while exercising the powers to release the accused-respondent on bail.
10. While dealing with the bail matters, the Courts are supposed to make a tentative assessment of evidence and the other material brought on the record. The Courts are not supposed to go into the deeper appreciation of evidence and the other record made available. The Courts have to confine themselves within the parameters determined by law. While dealing with the bail matters, the Courts have only to look into the material brought on the record in the form of FIR, the statements recorded under section 161, Cr.P.C., and of course the defense version, if any. The word 'shall' used in the proviso to sub-section (1) of section 497, Cr.P.C. Reproduced in the preceding para 1 of the judgment makes it obligatory for the Courts to grant the bail to an accused where the trial is not concluded in the specify period and the accused is not responsible for such delay. However, an embargo has been placed that the accused previously convicted for an offence of death or imprisonment for life, hardened, desperate and dangerous criminal shall not be released despite the fact that the trial is not concluded within the statutory period. In the absence of these elements the Court must exercise its discretionary powers in a judicial manner. The Courts are not supposed to exercise their discretion in arbitrary manner. After being released on bail, there is no allegation of misuse of the concession of bail. The trial is already in progress and the persecution has examined 15 witnesses out of 26 witnesses cited in challan.
In the light of what has been discussed above, we are of the view that the learned counsel for the appellant remained unable to point out any infirmity or illegality in the impugned order which has been passed by the Shariat Court after due application of judicial mind and statutory backing, which warrants no interference by this Court. Resultantly, this appeal has no force, the same is hereby dismissed.