SARDAR MUHAMMAD EJAZ KHAN, J. The captioned application has been filed against the order of the learned District Court of Criminal Jurisdiction, Sudhnoti/Pallandri dated 26.02.2022 whereby the bail petition on statutory ground of delay in trial of the accused-petitioner in FIR No.27/2019 registered at Police Station, Mang, in offences under Sections 302, 341, 114, 109, A.P.C. and 15 (2) AA on 21.06.2019 was rejected.
2. Synthesized facts of the instant application arc that on instigation of complainant, respondent No.2, an FIR in offences mentioned above was registered against the accused-petitioner at Police Station, Mang, on 21.06.2019. The Police apprehended the accused-petitioner and after completion of investigation, a challan under Section 173 of Cr.P.C. was submitted before the learned trial Court.
It has been stated that the accused-petitioner filed first application for bail after arrest on statutory ground of delay in trial before the learned District Court of Criminal Jurisdiction, Sudhnoti/Pallandri, which was rejected on the ground that the requisite period has not been completed and after completion of that period, the petitioner filed second bail application on 04.02.2022, which too after hearing was rejected vide impugned order dated 26.02.2022, which was called in question by the petitioner before this Court on 07.03.2022. The same was dismissed vide order dated vide order dated 27.04.2022 against which the petitioner filed a Criminal Revision No.13 of 2022 before the Hon'ble Supreme Court, which was accepted while setting-aside order of this Court and the case was remanded to this Court with the direction to decide the question of hardened desperate and dangerous criminal and club both the proceedings, after providing the parties an opportunity of hearing vide order dated 03.10.2022, which is the subject-matter of this petition.
3. Barrister Humayun Nawaz Khan, Advocate, for the petitioner, more or less, reiterated the grounds of application and zealously argued that the learned trial Court was not justified to reject the application filed under statutory ground of delay in trial because the requisite time period under the relevant provisions of Section 497, Cr.P.C. has been completed, hence, after completion of statutory period without any fault on the part of petitioner, the bail can be claimed as a matter of right. The learned counsel contended that the petitioner was not previously convicted of any offence, hence, the prosecution raised the plea of hardened, desperate and dangerous criminal against the petitioner before the trial Court, which was not accepted by the learned trial Court as is evident from the order dated 15.10.2021, which was not challenged by the prosecution, hence, the impugned order is liable to be set-aside. The learned counsel maintained that apparently, the term hardened, desperate and dangerous criminal can only be considered in view of previous criminal record of the petitioner, hence, the learned trial Court misinterpreted the relevant provisions of Section 497 of Cr.P.C. and ignored the principles laid down by the Superior Courts governing the bail matters on ground of statutory delay. The learned counsel craved that the learned trial Court failed to consider the arguments advanced on behalf of the petitioner while the impugned order is not a speaking order and the petitioner cannot be kept behind the bars for an indefinite period without any fault on his part, hence, while setting-aside the impugned order dated 26.02.2022, the petitioner may be released on bail. The learned in support of his contention referred to and relied upon the following case law:- i) 1997 SCMR 316; ii 1998 SCR 409; iii) 2001 PCr.LJ 1257; iv) 2012 YLR 1603; v) 2015 PCr.LJ 134 and vi) 2014 SCR 953.
4. Sardar Kamran Khalil, representing the complainant, respondent No.2, while controverting the arguments of the learned counsel for the petitioner vehemently argued that the impugned order passed by the learned trial Court dated 26.02.2022 is in accordance with law and circumstances of the case rather the accused-petitioner committed murder of innocent person Nasir Farooq in a brutal manner at public place, hence, he falls within the term of hardened, desperate and dangerous criminal for which the learned trial Court committed no illegality and infirmity while rejecting the bail petition of the accused-petitioner. The learned counsel defended the impugned order dated 26.02.2022 on all counts and prayed for dismissal of application.
5. The learned A.A.G. owned the arguments advanced by the learned counsel for the complainant on all counts and defended the impugned order of trial Court on all four corners.
6. Having heard the respective arguments advanced by the learned counsel for the parties, I have gone through the record of the case with my utmost care and caution.
7. So far the arguments of the learned counsel for the petitioner that the impugned order of the learned trial Court is a result of misconception of law and the term hardened, desperate and dangerous criminal is not applicable in the case in hand on the ground that the petitioner was not previously convicted of any offence rather the same can only be considered in the light of previous criminal history of accused person but the trial Court finally formed its opinion before completion of trial, hence, the discretion exercised by the learned trial Court is contrary to the relevant provisions of law and the principles laid down by the superior Courts governing the bail matters while the petitioner is entitled to be released on bail on the ground of delay in trial, which can be claimed as a matter of right and in this regard, the learned counsel pressed into service mainly on two reported case laws i.e. [2014 SCR 934] and [2014 SCR 953] are concerned. It is apparent on the face of record that the trial of the case is almost near to completion while the point is yet to be determined by this Court that whether accused-petitioner is entitled to be released on bail on the ground of statutory delay in trial before the trial Court keeping in view the term of hardened, desperate and dangerous criminal. For proper appreciation of matter, Section 497 of Cr.P.C. is hereby reproduced in the following manner:- "497. When bail may be taken in cases of non-bailable offence. (1) When any person accused of 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 appears 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 that the Court may direct that any person under the age of sixteen 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 as 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 foregoing proviso shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) An officer or a Court releasing any person on bail under sub-section (1) or subsection (2) shall record in writing his or its reasons for so doing.
(4) If at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
(5) A High Court or Court of Session and, in the case of a person released by itself any other Court may cause any person who has been released under this section to be arrested and may commit him to custody."
8. As per third proviso of Section 497 of Cr.P.C. an accused of offence punishable with death, or imprisonment for life, if detained for such an offence for a continuous period exceeding two years, shall be released on bail, of course with the exception contained in the forth proviso of Section 497 of Cr.P.C. The provisions of third 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 and dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life. As the learned trial Court disallowed the bail to the accused-petitioner expressing its view that keeping in view, the circumstances of the case, the accused-petitioner is hardened, desperate and dangerous criminal as envisaged under fourth proviso to Section 497(1) of Cr.P.C.
9. The pivotal question before this Court is as to whether for declaring an accused as hardened, desperate and dangerous criminal his past record is essential or it could be ascertained from his act, mode and manner of occurrence in that very case. The words hardened, desperate and dangerous criminal used in forth proviso of Section 497 of Cr.P.C., have elaborately defined in a case reported as Raja Nasarullah v. The State [PLD 2011 Lahore 544] wherein it has been opined as under:- "In order to determine whether the present petitioner is a "hardened" or "dangerous criminal", we would like to first dilate upon the characteristics of persons falling within the above said three categories. A "hardened criminal" is one who has developed rigid behavioral pattern toughened through experience and not likely to change. All those persons, who have become rigid and devoid of any compassion could also be termed as "hardened". Similarly, a criminal could be considered "desperate", if he is willing to take risk fearlessly out of helplessness and despair. A "desperate criminal" could commit an act as a last resort without realizing its consequences.
However, the word "dangerous criminal" connotes a person, who is able to cause harm and injury having horrible effects against the society. The definition of "dangerous criminal" can also be ascertained with reference to conduct of an accused at the time he was arrested, his previous conduct, nature of offence with reference to its effect on society, his faithfulness or betrayal with reference to moral or official duties. This expression could also be extended to a person from whom society at large is unsafe or who is involved in acts, which are squeezing the beauty of humanity. So, it is the gravity of an offence of whatsoever nature, which brings an offender within the category of a "dangerous criminal". When viewed on this touchstone, even the first offender may be treated as a "dangerous criminal"."
Similar proposition came under consideration before the Hon'ble Supreme Court in a case reported as Muhammad Aziz v. The State and Ghulam Rasool and 2 others v. The State [2000 SCR 1] in which it has been observed that:- "We are of the opinion that the question as to whether an accused is hardened, desperate or dangerous criminal within the meaning of the aforesaid proviso is to be seen in light of the circumstances of each case, i.e., (i) the motive for murder, (ii) the part which each of the accused played in the completion of the offence, (iii) prima facie evidence in support of the incriminating act attributed to the accused persons, and (iv) the effects of the act of the accused on the family of victims and on the society at large. Considering the acts attributed to the accused-appellants along with other principles indicated above, we are of the opinion that in view of the different strings of the prosecution story which, prima facie, implicates the accused-appellants with the commission of offence of murder of five innocent persons, it cannot be said that the acts attributed to them are such that they are not desperate or dangerous criminal persons within the meaning of fourth proviso to section 497(1), Cr.P.C. it may be stated that the connotation of these words is wide bought to cover the case in hand. "
10. In the light of circumstances of the case, the words hardened, desperate and dangerous criminal connote that 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. However, the previous criminal record of an accused person is kept in mind but the same is considered in view of peculiar circumstances of the case for which a previous conviction of an accused does not have (sic) matter while the very gravity and severity of the act alleged to have been committed by the accused, even through for the first time, may be sufficient to attract the fourth proviso to section 497(1) of 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 and dangerous criminal.
11. Adverting towards the case law [2015 PCr.LJ 134] referred to and relied upon by the learned counsel for the petitioner, in this case the alleged occurrence took place on the main gate of the house of the complainant, which is not a public place rather in the case in hand the alleged occurrence took place at public place, which is a main chowk of Mang Bazar while the manner in which the occurrence took place appears to have been shown horror, threat and fear in a general public, hence, the above referred case is not applicable due to distinguishing facts and circumstances of the case in hand.
12. The learned counsel for the petitioner placed reliance on another case reported as [2014 SCR 953] in which this Court allowed the bail application on the ground of statutory delay in trial whereas the Hon'ble Supreme Court recalled the bail granting order for the reasons that the petitioner's case clearly falls within the definition of 'dangerous, criminal' therefore, this case is not helpful for the accused-petitioner.
13. It is relevant to mention here that the manner in which the occurrence took place is very important factor to declare an accused hardened, desperate and dangerous criminal. Three words, (i) hardened, (ii) desperate and (iii) dangerous, criminal have different scope and definitions, which differentiation has elaborately been discussed in preceding paras, hence, the case of accused petitioner undoubtedly falls within the definition of 'dangerous criminal' due to gravity of manner of occurrence while after tentative assessment of contents of FIR., autopsy report of deceased and statements of P.Ws, prima-facie, depicts that the accused-petitioner repeatedly fired 6/7 bullet shots at public place i.e. main chowk of Mung Bazzar, hence, the person who creates a sense of insecurity, panic and unrest in the society can be called a 'dangerous criminal' for which even in the absence of previous record, an accused can be declared hardened, desperate or dangerous criminal subject to act, mode and manner of occurrence in that very case.
14. The nutshell of the foregoing reasons is that the instant petition, finding no force, is hereby dismissed and the same shall be consigned to record. As this Court vide order dated 27.04.2022 directed the learned trial Court to decide the matter expeditiously but the same one way or the other is being prolonged and trial of the case has not yet been concluded, therefore, the learned trial Court is directed to decide the case within a period of 45 days from the date of receipt of this order and accelerate the trial on daily basis positively. The office is directed to transmit the record to the learned trial Court 'immediately while the parties are directed to appear before the learned trial Court on 06.02.2023.