MALIK SHAHZAD AHMAD KHAN, J.---Through the instant petition, the petitioner Nadeem Aslam seeks post arrest bail in case FIR No,63/2018 dated 28.01.2018, offences under sections 420/ 468/471, P.P.C. registered at Police Station City Arifwala, District Pakpattan.
2. Arguments heard. Record perused.
3. As per brief allegations levelled in the FIR, the petitioner was an accused in an earlier case FIR No,104/2016, under section 322, P.P.C., registered at Police Station Rang Shah, Arifwala. During the proceedings of bail petition, filed by the petitioner in the abovementioned earlier case, the petitioner produced a driving licence and a no-objection certificate (N.O.C), which were later on found to be fake, therefore, the offences under sections 420/468/471, P.P.C., were added in the above-mentioned case FIR No,104/2016, for production of a fake deriving licence in the said case, whereas, the instant separate FIR No,63/2018, has also been lodgedagainst the petitioner for production of a fake No-Objection Certificate (N.O.C), along with his driving licence in the abovementioned case FIR No,104/2016.
4. I have noted that on the basis of production of a fake driving licence, the petitioner has already been convicted and sentenced for charges under sections 420/ 468/471, P.P.C., in case FIR No,104/2016, though he was acquitted in the said case from the charge under section 322, P.P.C. vide judgment dated 23.02.2018, passed by the learned Magistrate Section-30, Arifwala. As the petitioner has already been convicted and sentenced under sections 420/468/471, P.P.C. for preparation of a fake driving licence, therefore, prima facie, the instant FIR, which has been lodged against the petitioner, on the basis of preparation of a fake No-Objection Certificate (NOC) for the same driving licence, amounts to double jeopardy, which is barred under Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973, read with section 403 of the Code of Criminal Procedure, 1898.
5. Even otherwise, the entire prosecution case is based on documentary evidence, which is already in possession of the prosecution and as such there is no chance of tampering with the same, therefore, in such circumstances no useful purpose shall be served by keeping the petitioner behind the bars, thus he deserves to be released on post arrest bail. Reference in this respect may be made to the case of Saeed Ahmad v. The State (1996 SCMR 1132).
6. Moreover, the offences mentioned in the FIR do not fall within the ambit of prohibitory clause of section 497, Cr.P.C. and grant of bail in such like cases is a rule while refusal is an exception. The learned Deputy Prosecutor General assisted by learned counsel for the complainant has argued that as mentioned earlier the petitioner is a previous convict for offences under sections 420/468/471, P.P.C., in the above-referred case FIR No,104/2016, therefore, he is not entitled to the relief of bail though the offences mentioned in the instant FIR do Lot fall within the ambit of prohibitory clause of section 497, Cr.P.C.
Now the crucial question for determination before this Court is that as to whether the previous conviction of an accused creates an absolute bar against the grant of bail to the said accused? In this respect 4th proviso of section 497(1), Cr.P.C. is the relevant provision of law, which is reproduced hereunder for ready reference:-- "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 or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life "
(underlining and bold supplied for emphasis).
It is evident from perusal of the abovementioned provision of law that the previous conviction of an accused does not create an absolute bar against the relief of bail. The said provision of law has made it clear that in cases falling under third proviso of Section 497(1) Cr.P.C. (i,e,, on the ground of delay in the conclusion of trial), the relief of bail shall not be granted to an accused "who is a previously convicted offender for an offence punishable with death or imprisonment for life".
The words "previously convicted offender" have been used in the above mentioned provision of law, only in respect of a special category of offenders who have previously been convicted for "offences punishable with death or imprisonment for life" which means that even in the cases falling within the ambit of 3rd proviso of section 497(1), Cr.P.C., the previous conviction of an offender under other offences is not relevant. The petitioner is a previously convicted offender for offences under sections 420/ 468/471, P.P.C., which offences are punishable for imprisonment upto seven (07) years and the same are not punishable with death or imprisonment for life, therefore, previous conviction of the petitioner cannot create any legal bar against the acceptance of his bail petition and release of the petitioner on bail. Reference in this respect may be made to the cases of "Muhammad Abid Farooq v. The State and another" (2015 PCr.LJ 224), "Amin v. The State" (1998 PCr.LJ 1677) and "Shamon Jatoi v. The State" (1996 PCr.LJ 783). In the case of "Amin" supra, at page No,1679, it was observed as under:-- "The trial Court while declining the bail to the applicant has not considered the fourth proviso to section 497, Cr. P. C. in its correct perspective because simplicitor conviction of an accused in any offence would not deprive him of the bail being granted on the ground of delay in conclusion of the trial. In order to bring the case of a person within the four corners of the fourth proviso it is essential that he should be a previously convicted offender for an offence punishable with death or imprisonment for life. Obviously the applicant was convicted for an offence under section 324, P.P.C., maximum punishment for which is 10 years. Hence, such conviction of the appellant will not come in his way for being released on bail under third proviso".
Similar view was taken in the cases of the "Muhammad Abid Farooq" and "Shamon Jatoi" ibid.
7. Learned Deputy Prosecutor General assisted by learned counsel for the complainant has next argued that the words "hardened, desperate or dangerous criminals" have also been used in the above-mentioned provision of law and as the petitioner is a previously convicted offender, therefore, he can be termed as a hardened, desperate and dangerous criminal, thus, he is not entitled to the relief of post arrest bail. There is no substance in the abovementioned argument because if the intention of the legislature was that a hardened, desperate or dangerous criminal means a person, who is a previously convicted offender, then there was no need to mention separately about the previously convicted offenders and the category of cases, .(punishable with death or imprisonment for life) in which he has previously been convicted.
It is also clear from the persual of section 497, Cr.P.C. that the previous conviction of an offender even for an offence punishable with death or imprisonment for life, would create a bar against the grant of bail to the said offender, if his bail petition is filed under 3rd proviso of the said provision i,e,, on the ground of expiry of statutory period mentioned therein and delay in the conclusion of his Trial, whereas there is no such restriction on the grant of bail to a previously convicted offender, if his case is covered under the remaining provisions of section 497, Cr.P.C. For example if the case of an accused is one of further inquiry covered under. section 497(2), Cr.P.C., then his previous conviction even for offence punishable with death or imprisonment for life would not create any bar against the grant of bail to the said accused. We may take here the example of a case of murder which has been lodged against the accused "A" and as per contents of the FIR of the said case, only the accused "A" was present at the spot, at the time of occurrence. Single_ fire arm injury on the body of the deceased is attributed to the said accused. It is not mentioned in the FIR that any other accused was also present at the crime scene, at the time of occurrence. The complainant party of the said case, after three months of the registration of FIR, malafidely implicates another accused "B" in the case with the allegation that he was also present at the spot along with accused "A", at the time of occurrence. No active role during the occurrence has been attributed to the accused "B" and as per improved prosecution version, he was merely present empty handed, at the spot, at the time of occurrence. In the abovementioned situation, it is the fittest case for grant of bail to the accused "B", on the ground of further inquiry as envisaged under section 497(2), Cr.P.C., but the argument is advanced that the accused "B" is a previously convicted offender for offence under section 302(b), P.P.C. and he was awarded life imprisonment in an earlier case, therefore, he is not entitled to the relief of bail. The question arises that as to whether the accused "B" can be refused the relief of bail merely on the ground that he was a previously convicted offender for an offence punishable with imprisonment for life, though his case is one of further inquiry, covered under section 497(2), Cr.P.C. The answer is in the negative because there is no legal restriction on the grant of bail to an accused due to his previous conviction for offence punishable with death or imprisonment for life, if his case is covered under section 497{2), Cr.P.C.
Similarly, if an accused for offence under section 489-F, P.P.C., is behind the bars for a period of more than two (02) years and he did not play any role in the delay in the conclusion of his trial. He files a petition for post arrest bail under third proviso of section 497(1), Cr.P.C., on the ground of delay in the conclusion of his trial. His bail petition cannot be dismissed on the ground that he is a previously convicted offender for offence under section 489-F, P.P.C., in an earlier case because he has not been previously convicted for an offence punishable with death or imprisonment for life. In the light of above discussion, I am of the considered view that previous conviction of an accused does not create an absolute bar against the acceptance of his bail petition and the same is only relevant if he is a previously convicted offender for an offence punishable with death or imprisonment for life and he has filed his bail petition only on the ground of expiry statutory period, mentioned in 3rd proviso of section 497(1), Cr . P. C . However, previous conviction of an accused is not relevant in the bail petitions falling under the other provisions of section 497, Cr.P.C. or if he has filed his bail petition under 3rd proviso of section 497(1), Cr.P.C. and he is not a previously convicted offender for an offence, punishable with death or imprisonment for life. It has lastly been argued by the learned Deputy Prosecutor General assisted by learned counsel for the complainant that in the case of "Tariq Bashir and 5 others v. The State" (PLD 1995 Supreme Court 34), the Hon'ble Supreme Court of Pakistan has observed that a previous convict is not entitled to the relief of bail. It is noteworthy that while delivering the abovementioned judgment in the case of "Tariq Bashir" supra, the Hon'ble Supreme Court of Pakistan has given the following exceptions for refusal of bail to an accused, whose case does not fall within the ambit of prohibitory clause of section 497, Cr.P.C.:--
(a) where there is likelihood of abscondence of the accused;
(b) where there is apprehension of the accused tampering with the prosecution evidence;
(c) where there is danger of the offence being repeated if the accused is released on bail; and
(d) where the accused is a previous convict.
It is most respectfully observed that the above-mentioned judgment of the Hon'ble Supreme Court of Pakistan was delivered on 31.08.1994, whereas the 4th proviso of section 497(1), Cr.P.C., has been enforced on 20.04.2011, through Act VIII of 2011. The said proviso was not available on the statute books, when the judgment in the case of Tariq Bashir ibid, was passed by the Hon'ble Supreme Curt of Pakistan. On 31.08.1994, 3rd and 4th provisos of section 497(1), Cr.P.C. stood omitted through Ordinance LIII of 1994 dated 25.07.1994, therefore, at the time of judgment passed by the Hon'ble Supreme Court of Pakistan in the case of Tariq Bashir ibid, 3rd and 4th provisos of section 497(1), Cr.P.C., were not available on the statute books. Prior to their omission vide Ordinance LIII of 1994, dated 25.07.1994, 3rd and 4th provisos of section 497(1), C.P.C., were added through Ordinance XXXII of 1983 dated 26.12.1983. 4th proviso of section 497(1), Cr.P.C., added through Ordinance XXXII of 1983, which remained on the statute books till 25.07.1994, is reproduced hereunder:-- "Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal."
It is, therefore, evident that at the time of pronouncement of the judgment in the case of Tariq Bashir ibid, 3rd and 4th provisos of section 497(1), Cr.P.C., stood omitted vide Ordinance LIII of 1994, dated 25.07.1994, whereas prior to that the words "for an offence punishable with death or imprisonment for life" were not used in the relevant law, in respect of a previously convicted offender. Earlier under the 4th proviso of section 497(1), Cr.P.C., it was provided that provisions of 3rd proviso of section 497(1), Cr.P.C., shall not apply to a previously convicted offender, without specifying the category of offences, in which the previous conviction was passed against the accused. However, later on through Act XIX of 1994 dated 14.11.1994, 3rd and 4th provisos were again added in section 497(1), Cr.P.C. 4th proviso of section 497(1), Cr.P.C., which was added in a new form through Act XIX of 1994, reads as under:-- "Provided further that the provisions of the third proviso to this subsection 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"
8. As it was clarified through the above-mentioned amendnient/addition dated 14.11.1994 vide Act XIX of 1994, in section 497(1), Cr.P.C., that previous conviction of an offender only for offence punishable with death or imprisonment for life shall create bar against the grant of bail to the said accused, on the ground of expiry of statutory period, mentioned in 3rd proviso of section 497(1), Cr.P.C., therefore, in the cases of Amin and Shamon Jatoi supra, which were decided after the abovementioned addition/amendment of 4th proviso of section 497(1), Cr.P.C., it was held that to bring the case of an accused within the four corners of 4th proviso of section 497(1), Cr.P.C, the accused should be a previously convicted offender for offence punishable with death or imprisonment for life and as the accused of the said cases were not previously convicted offenders for offences punishable with death or imprisonment for life, therefore, they were granted post arrest bails in the said cases, despite of their previous convictions for other offences. It may not be out of place to mention here that 3rd and 4th provisos of section 497(1), Cr.P.C., were again omitted vide Ordinance LIV of 2001 dated 10.10.2001, however, as mentioned earlier 3rd and 4th provisos of section 497(1), Cr.P.C., were added again in its present form (as mentioned in paragraph No,6, of this order) vide Act VIII of 2011 dated 20.04.2011.
9. Now the basic law has itself clarified that in what category of cases of previous conviction, the bail of an accused can be declined. Moreover, the Hon'ble Supreme Court of Pakistan in the subsequent judgments reported as "Mitho Pitafi v. The State" (2009 SCMR 299) and "Qamar alias Mitho v. The State and others" (PLD 2012 Supreme Court 222), has already indirectly over ruled the findings given in the case of Tariq Bashir supra that "post arrest bail cannot be granted to an accused, if there is likelihood of his abscondence" and observed that if an accused is entitled to the relief of bail on merits, then the said relief cannot be denied to him merely on the ground of his abscondance. Similarly the other observations given in the case of Tariq Bashir ibid that "the relief of bail cannot be extended to an accused, if there is danger that he will repeat the offence" have also been indirectly over-ruled by the Hon'ble Supreme Court of Pakistan through the subsequent judgments reported as "Jamal-ud-Din alias Zubair Khan v. The State" (2012 SCMR 573) and "Muhammad Rafique v. The State" (1997 SCMR 412), wherein it was held that mere involvement of an accused in some other cases by itself is no ground to refuse bail to him, if he is entitled to the said relief on merits. In the light of above discussion, there is no substance in the argument of learned Deputy Prosecutor General assisted by learned counsel for the complainant that merely on the ground of previous conviction of the present petitioner in the above-mentioned case FIR No,104/2016, he is not entitled to the relief of bail. Moreover, I have already observed that prima facie registration of the instant FIR against the petitioner amounts to double jeopardy.
10. As the offences mentioned in the FIR, do not fall within the ambit of prohibitory clause of section 497, Cr.P.C., therefore, keeping in view the law laid down in the cases of Zafar lqbal v. Muhammad Anwar and others (2009 SCMR 1488) and "Muhammad Tanveer v. The State and another" (PLD 2017 Supreme Court 733), ordaining that where a case falls within non-prohibitory clause, the concession of granting bail must favorably be considered and should only be declined in exceptional cases and as there is no exceptional ground in this case to refuse bail to the petitioner, therefore, the instant petition is allowed. The petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs,1,00,000/- (Rupees one hundred Thousand only) with one surety in the like amount to the satisfaction of the learned trial Court.