' RAJA SAEED AKRAM KHAN, J. --- This appeal has been directed against the order of the Shariat Court dated 26.05.2014, whereby, the revision petition filed by the appellants was dismissed.
2. The appellants are accused in a case registered under sections 302, 324, 337-F, 337-A, 341, 147, 148 and 149, APC read with Section 13 of Arms Act, 1965 and are facing trial in the Additional District Court of Criminal Jurisdiction, Kotli. The facts of the case as emerged from the record are; that the complainant, Raheem Dad Khan filed a written report at Police Station, Kotli on 07.11.2011, alleging therein, that on 07.11.2011, he went to offer Eid prayer in AlFarooqia Mosque. After offering the Eid prayers, he met with Subedar Khadim Hussain, Qamar, Basharat and Musddiq Hussan and they all proceeded to a shop for buying some sweets. At about, 9:45 a.m. When they reached near the shop of Abdul Rauf, the accused, namely, Iftikhar, Tariq, Waqas, sons, of Abdul Hameed, Abdul Hameed s/o Muhammad Hussain, Qadeer, Tanveer Hussain, sons of Maqsoom and Qasim s/o Abdul who were armed with fire-arm weapons came there and attacked them. The accused started indiscriminate firing with the intention to kill them.
' The accused, Tariq, who was armed with 30-bore pistol fired two straight shots on Khadim Hussain, out of which one fire hit on the left side of his chest while the other fire hit at the inner side of his left leg. The accused, Iftikhar, fired a shot by 30-bore pistol at Qamar Mahboob, which landed on left side of his chest. The accused, Waqar, fired with 30-bore pistol which hit on the right foot of Basharat. Accused, Abdul Hameed inflicted a dagger blow on the head of the complainant. During fight, the accused, namely, Qadeer and Qasim have also made the firing and due to their firing accused, Abdul Hameed also sustained injuries. The injured persons were being brought to District Headquarter Hospital, Kotli, whereby Qammar Mahboob and Subedar Khadim Hussain succumbed to the injuries on the way.
3. After registration of the case the accused were arrested by the police and on completion of investigation, the challan was presented in the Court of competent jurisdiction. During the course of the trial of the case, on 20.11.2013, the accused-appellants moved an application for bail on the ground of statutory delay in trial. The Trial Court vide order dated 12.12.2013, rejected the bail application filed by the accused-appeliants. Feeling aggrieved the accused-appellants filed revision petition before the Shariat Court. The learned Shariat Court vide impugned order dated 26.05.2014 also dismissed the revision petition filed by the accused-appellants. Hence, this appeal.
4. Raja lmtiaz Ahmed Khan, Advocate, the learned counsel for the accused-appellants submitted that the learned Shariat Court while passing the impugned order has not adhered to law on the subject in true perspective. He added that the learned Shariat Court has misinterpreted the law while refusing the bail on the statutory ground of delay. He contended that the Courts below fell in error while not taking into account that relevant provisions of Section 497, Cr.P.C., give the right of bail to an accused if the trial is not concluded within a period of two years. He contended that no reason whatsoever has been assigned by the Courts below while disallowing the bail application of the accused-appellants after completion of the statutory period of two years. He forcefully contended that the findings recorded by the Courts below that the accused-appellants being desperate, hardened and dangerous criminal, are not entitled to get the benefit under the prohibitory clause of Section 497, Cr.P.C., have no substance as before recording the evidence of all the witnesses, it cannot said that the case of the accused-appellants falls under the 4th proviso to subsection (1) of Section 497, Cr.P.C. He maintained that no cogent reason has been assigned by the Courts below for denial of the relief granted by the statute. He submitted that the accused- appellants are neither previous convict nor any criminal case prior to the case in hand was ever registered against them. In this way, the observation regarding hardened, desperate or dangerous criminal, is devoid of any force. He submitted that the accused, Abdul Hameed was also injured during occurrence by the hands of complainant party, but the police did not registered the case against the complainant party. Even police suppressed the injuries of the accused, Abdul Hameed.
This conduct itself shows the partiality of the police authorities. In this regard, he drew the attention of this Court towards the medical report of injured accused available on record and submitted that the Courts below have failed to appreciate the record in a legal manner. He lastly submitted that the occurrence took place at the spur of moment and the injuries received by the accused shows that the occurrence was not preplanned one. He has relied upon the cases reported as Muhammad Siddique v. Muhammad Behram and another [1998 SCR 146] and Zahid Hussain Shah v. The State [PLD 1995 SC 49].
5. On the other hand, Malik Muhammad Zarait Khan, Advocate, the learned counsel for the complainant, strongly opposed the arguments advanced by the learned counsel for the accused- appellants. He submitted that the impugned judgment is perfect and legal which does not warrant any interference by this Court. He added that the accused-appellants murdered two innocent persons in a brutal manner and also seriously injured three other persons. In this scenario, the case of the accused-appellants fully falls in the category of hardened, desperate and dangerous criminal. He submitted that both the Courts below have rightly came to the conclusion that the role of the accused-appellants does not entitle them to get the benefit of statutory delay in conclusion of trial. He added that the case of the accused-appellants is fully covered under the 4th proviso to sub-section (1) of Section 497, Cr.P.C. The learned counsel argued that the material collected by the prosecution fully implicated the accused-appellants in the commission of offence. He added that at bail stage, only a tentative assessment on record can be made and deeper appreciation of evidence is not warranted under law. The Court has to form the opinion on the basis of allegations levelled in the F.I.R. And the statements of the witnesses recorded under Section 161, Cr.P.C.
Moreover, the witnesses who appeared before the Court fully supported the version of the prosecution. He has relied upon the cases reported as Naeem Akram Khan v. Mumtaz Ahmed and another [2002 SCR 409], Muhammad Asif v. The State [2002 P.Cr.L.J. 1102] and Mansab Dar and 2 others v. The State [PLD 1975 Lahore 530].
6. Ch. Muhammad Ashraf Ayyaz, the learned Additional Advocate-General adopted the arguments advanced by the learned counsel for the complainant.
7. We have heard the learned counsel for the parties and gone through the record made available alon gwith the impugned order. The accused-appellants moved an application for seeking bail on the statutory ground as the trial of the case could not be concluded within a period of two years.
The law gives a right to the accused to be released on bail if the trial is not concluded within a period of two years. The question arises; whether, the Courts below have failed to exercise the jurisdiction while not extending the concession of bail to the accused-appellants in spite of the fact that the statutory period of two years regarding conclusion of trial has been elapsed? From the record it transpires that while refusing the concession of bail the Courts below assigned the reason that the element of brutality is available in the case as the occurrence took place on the Eid day.
We are afraid, that mere fact that the occurrence took place on Eid day, does not debar to release an accused on bail until the case of the accused otherwise comes within the purview of 4th proviso to sub-section (1) of Section 497, Cr.P.C. It will be advantageous to reproduce here the relevant Section which reads as under:--- "Section 497(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 any offence punishable with death or imprisonment for life or imprisonment for ten years: ' Provided that the Court may direct that any person under the age of 16 years or any woman or any sick or infirm person accused of such an offence be released on bail: ' Provided further that a person accused of an offence has aforesaid shall not be released on bail unless the prosecution has been given notice to show-cause why he should not be so released: ' Provided further that the Court shall, except where it is of 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, or in exercise of any right or privilege under any law for the time being in force 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 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 whose trial for such offence has not concluded: ' Provided further that the provisions of the third proviso to this sub-section 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 or dangerous criminal or involved in terrorism punishable with death or imprisonment for life."
' After going through the above-said provisions, it appears that there is no ambiguity that bail can only be refused on the grounds, mentioned therein, otherwise, bail cannot be withheld. The occurrence took place on 07.11.2011 and the accused were arrested on 13.12.2011. Admittedly, the trial of the case could not be concluded even after lapse of more than two years and nothing is spelt out from the record that the delay was occasioned due to the conduct of the accused-appellants.
8. Now the next question arises whether the accused-appellants are hardened, desperate and dangerous criminal, therefore, they are not entitled to get the concession of bail even after lapse of statutory period? The term hardened, desperate, and dangerous criminal has elaborately been discussed by this Court in a case reported as Jahanzeb v. State and others [2014 SCR 750] in the following manners:- "8. We have made a tentative assessment of the material collected by the investigating Agency.
Any detailed or deep expression of opinion at this stage is not deemed appropriate as it may adversely effect the ultimate decision of the case. However, for determination of the legal status of the accused-appellant that as to whether he falls within the definition of hardened, desperate and dangerous criminal, in our opinion in this case, except the narrated story of incident, no other material has been brought on record by the prosecution to satisfy the Court for making opinion in this regard. No doubt, even without previous conviction, the accused can be treated as hardened and desperate criminal while keeping in consideration the manner of commission of offence. In the present case, as it has already been observed that except a single fire shot, there is no other attribution against the accused-appellant. The Courts have in some cases formed the opinion relating to the. Accused being hardened, desperate and dangerous criminal where the accused's manner of commission of offence was extraordinary, brutal and highly conspired with preplanning but in absence of these factors, the Courts normally avoided to form opinion to declare the accused as hardened and desperate criminal. It is Settled that while making any opinion, the Court has to take into consideration the material placed before it."
' Similarly, in another case reported as Farzana lmtiaz v. Tariq Hussain & another [2014 SCR 149] this Court has dealt with the proposition in the following manner:-
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 accused 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 confer 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 hardened, desperate and dangerous criminal."
' After going through the above-said dictum laid down by this Court we are not convinced with the reasons assigned by the Trial Court for refusing the concession of bail while observing that the accused are hardened, desperate, and dangerous criminal. From the impugned order it seems that the Court is much influenced by the day of occurrence, i.e., Eid day. The prosecution has not produced any record from where it could be ascertained that the accused-appellants are previously convicted or have been involved in any other criminal case. Mere cause of death by firing is not sufficient, for declaring an accused as hardened, desperate and dangerous criminal. In such-like situation, the right which has been conferred by law, cannot be taken away on the ground that the occurrence took place on Eid day. It. Also reveals from the record that one of the accused, namely, Abdul Hameed was seriously injured during the occurrence by the fire-arm weapon and his both hands are not in working condition. Although, the argument addressed by the learned counsel for the complainant that injury was caused in the result of firing of the accused party and this fact was not suppressed by the prosecution as it was mentioned in FIR, however, the record shows that an application was moved by the accused party during investigation for incorporating the injuries received by the accused but on the refusal of the investigating agency they constrained to move an application in this regard in the Trial Court and on the said application the accused was medically examined. At this stage we are not inclined to make any sort of comments on the merits of the case which may prejudice the case of either party. We are of the view that the injuries received by the accused shall also be seen in the light of the evidence produced by the parties, however, for the bail purpose this aspect of the case cannot be ignored.
9. So far as, the argument of the learned counsel for the complainant-respondent that the trial is in progress and almost prosecution evidence has been completed and only two or three witnesses are yet to be examined, is concerned we are of the view that commencing of trial does not impose any clog for releasing the accused on bail, therefore, this argument cannot be considered at this stage. As we are convinced that a statutory right has been accrued in favour of the accused- appellants on non-conclusion of trial within the stipulated period, therefore, the bail cannot be withheld if no other condition is attracted which may impose an embargo for releasing the accused on bail. The case of the accused-appellants does not fall under the definition of hardened, desperate and dangerous criminal.
10. The case-law referred to and relied upon by the learned counsel for the complainant having distinguishable facts and merits have no relevance with the instant case, hence need not to be discussed in detail.
' In the light of above discussion this appeal is accepted and the accused-appellants are directed to be released on bail if they are not required in any other case or offence provided they furnish a bail bond in sum of Rs. 20,00,000/- (twenty lac) each, consisting of two sureties and personal bond in the like amount to the satisfaction of the Trial Court.