ABDUL RASOOL MEMON, J.---As the above captioned bail applications, arising out of crime No,80/2012 and 82/2012 of PS Civil Line Jacobabad under sections 420, 468, 220, 225-A, 446, 471, 477 and 34, P.P.C. Read with section 5(2) Act-II of 1947, facts of which more or less similar, were taken up together with B.As. Nos.1540/2014, 1542/2014, 1544 of 2014, for hearing but in these three bail applications none had appeared, as such, are hereby de-tagged/separated from other bail applications and be taken up for hearing after notice to counsel as well as the applicants. However, supra titled Bail Application Nos.1538/2014, 1539/2014, 1541/2014, 1543/2014 and 2245/2014 involving same facts and grounds are being disposed of by this common order.
2. Both these cases were registered by Saeed Ahmed, Superintendent Sessions Court, Jacobabad on 29-11-2012 and 13-12-2012 regarding release of accused/criminals involved in the commission of heinous offences from Central Prison-I, Sukkur on the basis of fake release writs (details of cases and accused released from Jail are mentioned in FIRs). As per prosecution case applicant Abdul Qayoom Golo prepared fake release writs and illegally used seals of the Courts and service Card of Naib Qasid Naseer Dasti and he in collusion with Jail staff Qalandar Bux, Deputy Superintendent, Irfan Pirzada Clerk, Amanullah Bhatti OG Ward, P.0 Amir Ali Brohi, had illegally go released UTP and convicted prisoners by misusing their powers/official positions (details of cases and particulars of accused released are given in FIR). In the enquiry held by Sessions Judge, Jacobabad, the above named accused were found involved in preparing forged release writs with fake signatures and using official Court seals illegally.
3. The bail application previously moved by applicant Qalandar Bux for bail before arrest was dismissed vide order dated 25-02-2013 passed in Cr. B.A. No,117/2013, thereafter said applicant approached the honorable Supreme Court but with no success; consequently on 18-06-2013 he was arrested. After confinement in Jail for more than year applicant Qalandar Bux and Abdul Qayoom Golo submitted bail applications to the learned Judge, Anti-Corruption Court, Larkana on statutory ground of delay in trial of the case but same were declined, they have repeated the instant applications before this Court on the same grounds while bail applications of Amanullah and Irfan Ali rejected by trial. Court on merits, besides merits have also agitated the ground of statutory delay.
4. I have heard the learned counsel for the applicant and learned A.P.G. On behalf of State.
5. Learned counsel for the applicants have mainly pressed the applications on the ground of an inordinate delay in disposal of cases. They contended that applicants have admittedly remained in Jail for about two years without the commencement of the trial and that they have a right to be released on bail as the offence with which applicants are charged carries maximum punishment upto 7 years thus their case falls under clause (a) of third proviso attached to section 497(1), Cr.P.C.
And that exception appended to the proviso is not attracted to the applicants because nothing is brought on record to establish that they are previously convicted offender for an offence punishable with death or imprisonment for life or were hardened, desperate or dangerous criminals or are accused of an act of terrorism, punishable with death or imprisonment for life.
6. Learned counsel for applicants Amanullah and Irfan with reference to case reported in PLD 2012 Sindh 261 submitted the ground of statutory delay has been made available to these applicants during pendency of their bail applications, as such, they can directly raise this ground before this Court.
7. Learned A.P.G. Opposed these applications on the ground that the offence committed by the applicants is of serious nature, as such, they are not entitled to be released on bail, even on the grounds agitated orally or in the applications.
8. I have given due consideration to the arguments advanced by the parties counsel and have gone through the relevant record and proviso viz. Third proviso of section 497(1), Cr.P.C. Which entitles an accused for bail in an offence not punishable with death, after having remained in custody for a. Continuous period exceeding one year but under fourth proviso attached to ibid section, the concession of bail on the ground of delay is denied to the following persons.
(i) a previously convicted offender for an offence punishable with death or imprisonment for life;
(ii) to a person who, in the opinion of the Court is a hardened, desperate or dangerous criminal;
(iii) an accused of an act of terrorism punishable with death or imprisonment for life.
9. So far condition/ground (i) and (iii) of above proviso, same have no application to the case of applicants as nothing is alleged or brought on record to this respect. With regard to persons following within category supra in para (ii) above, obviously, it is left for the Court to determine by forming tentative assessm ent from the material available on the record.
10. In the case of Zulfiquar Ali and another v. The State' reported in 1990 PCr.LJ 822, this Court after review of reported cases on the point observed as follows.
A person desperate and dangerous character means a person, who has a reckless disregard of the safety and property of others. The characteristic of being-desperate and dangerous is a personal attribute and, therefore, the manner in which an accused person has conducted himself at the time of commission of offence is also an important consideration in arriving to a finding of this nature. The opinion of the Court to this effect which is always tentative in nature can be formed on the basis of ----
(i) nature of accusation and conduct of accused at the time of alleged incident,
(ii) previous record of the accused which may include his earlier prosecution and
(iii) material placed before the trial Court like reports of concerned police and jail authorities.
11. It is the cumulated effect of all the three aspects that may finally determine a tentative opinion in this behalf. Of course, prosecution has not produced previous record of the applicants indicating his involvement in criminal cases (earlier prosecutions) and reports of police and Jail authorities are in favour of applicants but main point is nature of accusation and conduct of the applicants at the time of alleged incident. In the earlier round of bail application of applicant Qalandar Bux, honourable Supreme Court while declining his bail referred to the case of Imtiaz Ahmed v. State (PLD 1997 SC 545) wherein it was observed that; "7. I may observe that a distinction is to be made between an offence which is committed against an individual like a theft and an offence which is directed against the society as a whole for the purpose of bail. Similarly, a distinction is to be kept in mind between an offence committed by an individual in his private capacity and an offence committed by a public functionary in respect of or in connection with his public office for the aforesaid purpose of bail. In the former cases, the practice to allow bail in cases not falling under prohibitory clause of section 497, Cr.P.C., in the absence of an exceptional circumstance may be followed, but in the latter category, the Courts should be strict in exercise of discretion of bail. In my view, the above category of the offenders belongs to a distinct class and they qualify to be treated falling within an exceptional circumstances of the nature warranting refusal of bail even Where maximum sentence is less than 10 years' R.I. For the offence involved provided the Court is satisfied; that prima facie, there is material on record to connect the accused concerned with the commission of the offence involved.
The Courts should not be oblivious of the fact that at present Pakistan is confronted with many serious problems/difficulties of national and international magnitude which cannot be resolved unless the whole Pakistani nation as a united entity makes efforts. The desire to amass wealth by illegal means has E penetrated in all walks of life. The people commit offences detrimental to the society and the country for money. Some of the holders of the public office commit or facilitate commission of offences for monetary consideration in the above Scenario the Courts approach should be reformation-oriented with the desire to suppress the above mischieves. To achieve the above objective, it is imperative that the Courts should apply strictly the laws which are designed and intended to eradicate the above national evils but at the same time, they are duty bound to ensure that the above approach should not result in miscarriage of justice. It should not be overlOoked that Article 9 of our Constitution, which relates to a fundamental, right, guarantees life and liberty of every personal life, inter alia, includes the right of have access (c3 a fail and independent judicial forum for redress. A balance is to be struck between national and individual interes/right.
8. The jail breaking resulting into escaping of the persons involved in heinous crimes, which is detrimental to the society as a whole, is a crime of the nature which falls under the above second category and, therefore, the Courts will be justified in appropriate cases not to exercise discretion in favor of public officers, who allegedly aided or abetted in the commission of such crimes and who are also charged with an offence under section 5(2) of Act-II of 1947 or under any other provision of the Pakistan Penal Code or the other law which offence is non-bailable but carries sentence less than 10 years' R.1 (also see: Zeeshan Kazmi v. The State (PLD 1997 SC 267)".
12. The allegations against all applicants are similar as that of applicant Qalandar Bux. Applicant Abdul Qayoom had prepared and issued fake release writs of UTPs and convicted prisoners and got them released in connivance with co-accused/applicants Qalandar Bux, Deputy Superintendent, Amanullah OG Ward and Irfan Clerk of Prison and thus being in league all are on same footing.
13. The above referred case also relates to same Sukkur Jail break incident of 1996 and as stated above has already been held applicable to the facts of this case. The case of applicants in the present circumstances is of special nature wherein the applicants being responsible officers officials of Court and prison in league with each other knowingly about the UTP/Convicted prisoners and nature of their cases illegally released them on the basis of fake release writs and by releasing such type of criminals under fake orders, the applicants seems to be more dangers than the accused/criminal released, as such, in the present scenario such type of accused are to be discouraged. Therefore, keeping in view the above observations of honourable Supreme Court, after tentative appraisal of the record, I do not feel persuaded to even extend the benefit of proviso
(3) to section 497(1), Cr.P.C. And according to me the applicants do not qualify for the grant of bail in view of the above legal and factual position, consequently, Bail Applications Nos.1538, 2245, 1543, 1539, 1541 of 2014 are dismissed accordingly. The trial Court is, however, directed to conclude the trial of cases within a period of four months from the receipt of this order. ##E##