' The applicants, Muhammad Usman son of Sons (2) Muhammad Isa son of Pandhi Khan and (3)
Hashim Khan, all Rind by caste and residents of Mangoli, Dera Murad Jamali, District Nasirabad are charged with the murder of four persons namely Zawar Khan, Jafar Khan, Abdul Sattar and Allah Dina and are facing trial in the Court of the Sessions Judge, Sibi at Jhatpat. The F.I.R. In that connection was lodged at Cattle Form Police Station (Usta Muhammad) District Nasirabad on 30- 3-1981. The applicants were however arrested on 9-5-1982. All the prosecution witnesses except the Investigating Officer have been examined. The Investigating Officer though present in Court was not examined as the defence counsel wanted some time for preparation of the cross-examination.
However the bail application was pressed by the counsel on the solitary ground that more than two years have passed and the trial has not been concluded as such according to the counsel the accused have become entitled to be released on bail.
2. The learned Sessions Judge after considering the evidence led before him and the circumstances of the case was of the opinion that the accused persons were previously convicted for a similar offence of murder which conviction was confirmed in appeal also. (The trial was held under the Criminal Law (Special Provisions) Ordinance, 1968) but before the Member, Board of Revenue the accused persons were successful in getting the matter compromised with the aggrieved party and as a consequence whereof the petitioners had secured acquittal, but since the petitioners were found guilty of the offence of murder they are "desparate and danagerous".
The conduct of the petitioners therefore could not persuade the trial Court to release them on bail keeping in view the newly added proviso as contained in the Ordinance XXXII of 1983 promulgated on 26-12-1983.
' The provision referred to by the learned Sessions Judge reads:- "Provided further that the provisions of the third proviso to the subsection shall not apply to a previously convicted offender or to a person who in the opinion of the Court is hardened, desparate or dangerous criminal".
2. No doubt the requirement of justice generally is that an accused person should be tried with as little delay as possible and the requirement as to bail are to secure the attendance of the accused at trial and certainly not to be withheld as punishment, and keeping this requirement in view the law makers have provided that a person shall be released on bail 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, vide Ordinance LXXI of 1979. This may be regarded as a result of liberalizing influence on the part of the Legislature but the law-makers vide Ordinance XXXII of 1983 publlished in Gazette of Pakistan Extra Ordinary Part I dated 26-12-1983 have restricted the operation of this proviso and provided that "the provisions of third proviso (relied by the learned counsel) 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 desparate or dangerous criminal". This latest provision being the last word of the law-makers is not without a purpose and is not meant to be ignored. The Courts have therefore been permitted by law to consider the exigencies of each particular case while exercising their judicial discretion The Courts normally decline bail in cases of offences punishable with death since the severety of punishment is itself such as to induce a person to escape the trial and when there is likelihood of the accused repeating the offence and the conduct of the accused appear to the Court to be dangerous the refusal to grant bail is not punitive but only preventive in the interest of justice which certainly demands that nobody should be allowed to impede the course of justice and hamper its administration in any manner. This principle of administration of justice has been reflected in the pronouncement of the superior Courts and conduct of the accused has always been relevant consideration in the matter of bail. This principle has now been incorporated in section 497, Cr.P.C.
And given statutory recognition.
3. It has been pointed out by the learned Advocate-General that the accusation against the petitioners are not only of serious nature but they have committed this offence while they were being tried under the Criminal Law (Special Provisions) Ordinance, 1968 and were on bail in the previous murder case and wherein they had been proved guilty which conviction was also confirmed. The accused are thus dangerous and desparate persons.
4. The learned counsel for the petitioners when asked by me as to the nature of the defence in the instant trial and the approximate duration within which the defence witnesses are likely to be examined chosed not to answer the question but asserted that he is concerned only with the bail application according to him since the accused have been in custody for more than two years they are entitled to be released on bail as of right, and pressed into service the amendment in section 497, Cr.P.C. (Ordinance LXXI of 1979).
No doubt the provisions relied upon by the learned counsel lays down generally that the accused shall be released on bail if he has been detained for a period exceeding two years and whose trial has not concluded. This operation of this provision has certainly been restricted by the latest amendment made on 26-12-1983 and this being the last word of the Legislature cannot be ignored.
The Legislature by adding the proviso in 1983 have restrained the generality of the provision relied upon by the learned counsel.
The substance of the matter is that in case the accused is found to be a previous convict, a hardened, desperate or dangerous irrespective of the period of detention the bail cannot be claimed as of C right and the restraint in such circumstances may well be justifiably imposed.
5. It has been repeatedly held by the superior Courts that an appellate Court should be slow to interfere with the discretion of a trial Court, if not exercised in a perverse or arbitrary manner. In the instant case it cannot be said that the trial Court has acted capriciously or in disregard of any legal principle in the exercise of its discretion. On the contrary there are elements in the case which can fairly be regarded as warrant for the Court's decision. To me the reason shown by the learned Sessions Judge is refusing the bail to the petitioners at this stage seemwise and weighty and certainly do not call for any interference.
' The application under section 498, Cr.P.C. Filed for the release of the petitioners on bail is accordingly dismissed.