Syed Mansoor Ali Shah, J. The petitioner seeks leave to appeal against the order dated 24.11.2021, whereby post-arrest bail was denied to him in case FIR No. 180/2020, dated 20.07.2020, registered at Police Station, Shah Saddar Din, District, Dera Ghazi Khan for offences punishable under Sections 336, 334, 367, 354, 342, 148 & 149 of PPC.
2. Briefly, the allegation as per the crime report is that the petitioner cut the nose of his bhabi, namely, Haseena Bibi, as well as, Abdul Rasheed, her alleged paramour. Unable to convince us on the merits of the, case, the learned counsel mainly sought bail on the statutory ground of delay in conclusion of the trial, under the third proviso to Section 497(1), Cr.P.C. He submitted that the petitioner was arrested on 20.07.2020 and more than two years have passed but the trial has not yet been concluded for no fault of the petitioner. The learned State counsel opposed the grant of bail to the petitioner on this ground with the submission that the petitioner is a hardened, desperate and dangerous criminal and is therefore not entitled to the grant of bail, as per the fourth proviso to Section 497(1), Cr.P.C. Learned counsel for the petitioner, in rebuttal, submitted that the petitioner has no previous criminal record, therefore, he cannot be treated as a hardened, desperate or dangerous criminal.
3. We have heard the learned counsel for the parties and have examined the record of the case with their able assistance.
4. The sole question that needs consideration and determination by us, in the present case, is: whether an accused person may be treated as a hardened, desperate or dangerous criminal, within the meaning of that expression as used in the fourth proviso to Section 497(1) Cr.P.C., on the basis of the facts and circumstances of the case, when he applies for bail on the statutory ground of delay in conclusion of the trial, or there must necessarily be some previous criminal record of the accused to form such an opinion by the Court about him.
5. In order to determine the above question, it is important to revisit the fourth proviso to Section 497(1), Cr.P.C., which is reproduced hereunder for ready reference:
497. When bail may be taken in case of non-bailable offence.
(1) .............
Provided .............
Provided ............
Provided ............
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.
The third proviso to Section 497(1) thus does not apply to an accused who is:
(i) a previously convicted offender for an offence punishable with death or imprisonment for life; or
(ii) a hardened, desperate or dangerous criminal, in the opinion of the Court; or
(iii) an accused of an act of terrorism punishable with death or imprisonment for life.
Condition (i) denies the relief of statutory bail to the accused because of his previous conviction for an offence punishable with death or life imprisonment. Condition (iii) is also self-explanatory and is attracted when the petitioner is accused of an act of terrorism punishable with death or imprisonment for life. So while condition (i) is about the past conviction of the accused and condition (iii) deals with the specific act of terrorism, it is condition (ii) which allows the Court to make a contemporary assessm ent of the character of the accused to arrive at an opinion whether he is a hardened, desperate or dangerous criminal.
6. The word "criminal" in the phrase "hardened, desperate or dangerous criminal" of the fourth proviso to Section 497(1) Cr.P.C., as held by a five member bench of this Court in Moundar v. State,
1. is not to be construed in the technical sense for a person who has been adjudged guilty of a charge in a Court of law, i.e., a convicted person; it has rather been used in its ordinary sense for a person who violates the law of the land and is accused of committing a crime. Further, the fourth proviso to Section 497(1) Cr.P.C. deals with the previously convicted offenders separately. Therefore, in order to bring an accused within the compass of a hardened, desperate or dangerous criminal, it is not necessary to prove that he has a previous criminal record of conviction.[2] It is thus obvious that the previous criminal record of convictions or of pendency of other criminal cases, though may be taken into consideration as a supporting material, is not an exclusive deciding factor to form an opinion as to whether the accused is a hardened, desperate or dangerous criminal. Such an opinion is to be formed by the Court mainly on basis of the facts and circumstances of the case, borne out from the material available on record, wherein the bail is applied on the ground of delay in conclusion of the trial,[3] by considering inter alia, the nature of the offence involved,[4] its effects on the victims or the society at large,[5] the role attributed to the accused,[6] the manner in which the offence was committed[7] and the conduct of the accused.[8] Needless to mention that the formation and recording of such opinion as to the character of the accused, like the opinion as to reasonable grounds for believing his involvement in the commission of the offence, is of tentative nature, and is thus open to re-examination and final determination on conclusion of the trial.
7. The meaning and scope of the phrase "hardened, desperate or dangerous criminal" have also been explained in Shakeel Shah,[9] wherein this Court held that the words "hardened, desperate or dangerous" point towards a person who is likely to seriously injure and hurt others without caring for the consequences of his violent act and can pose a serious threat to the society if set free on bail, and such tentative opinion as to the character of the accused is to be formed by the Court upon careful examination of the facts and circumstances of the case. We are of the considered view that the Court may also refer to any previous criminal record, if available, for forming such opinion but it matters little if the accused does not have a previous criminal record. The very gravity and severity of the act alleged to have been committed by the accused, even though for the first time, may be sufficient to attract the fourth proviso to Section 497(1), Cr.P.C. in the peculiar facts and circumstances of a case and may lead the Court to form opinion that the accused is a hardened, desperate or a dangerous criminal.
8. In the present case, the nature and manner of the commission of offence and the role attributed to the petitioner of cutting the nose of his bhabi and her alleged paramour are the circumstances which, in our opinion, describe him as a person who can be harmful and dangerous for the society if released on bail and thus makes him to fall within the scope of the expression of "a hardened, desperate or dangerous criminal" as used in the fourth proviso to Section 497(1) Cr.P.C. He is therefore not entitled to the benefit of the third proviso to Section 497(1) Cr.P.C. Hence, we are not inclined to interfere in the impugned order. Leave to appeal is declined and the petition is dismissed. We, however, direct the trial Court to expedite the proceedings of the case, and conclude the trial at the earliest.
1. 1 PLD 1990 SC 934.
2. Sher Ali v. State 1998 SCMR 190.
3. 3 Moundar v. State PLD 1990 SC 934; Jalal v. Allahyar 1993 SCMR 525; Umar Draz v. State 1997 SCMR 885 Muhammad Hanif v. State PLD 1986 Kar. 437.
4. Hussain v. State 1991 PCr.LJ 26; Sultan Ali v. State 1999 M LD 454.
5. Omair Ahmed v. State 1996 PCr.LJ 22.
6. Ghulam Rasool v. State 1998 M LD 1344.
7. Muhammad Asif v. State PLD 1996 Kar. 385; Shahnawaz v. State 2000 PCr.LJ 630.
8. Anwar Beg v. State 1999 PCr. U.1450.
9. Shakeel Shah v. State 2022 SCMR 1. See also Nadeem Samson v. State PLD 2022 SC 112.