1. ' ZAFFAR HUSSAIN MIRZA, J.---In these two appeals the common question of law which required determination is the true interpretation and meaning of the expression "hardened, desperate or dangerous criminal" as it occurs in the 4th proviso to subsection (1) of section 497 of Criminal Procedure Code. In both these appeals the appellants are facing trial on charges, inter alia, under section 302, P.P.C., in connection with which they had been put under arrest and had sought release on bail on the statutory ground of delay in the conclusion of their trial beyond the prescribed period of two years. In both these cases, although the Court found that each appellant in the respective appeal had been detained for a continuous period exceeding two years without the trial concluding, bail was refused on the ground that the appellants were desparate and dangerous criminals or they were hardened criminals.
2. ' It will be pertinent now to briefly state the facts of each appeal: CRIMINAL APPEAL No, 20-K OF 1987.
3. ' The four appellants in this appeal were taken into custody in connection with an occurrence which took place on 20th June, 1985, in which four persons are said to have been killed and one seriously injured. The appellants were sent up for trial before the learned Additional Sessions Judge, Larkana, under sections 302, 307, 404, 148 and 149, P.P.C., as well as section 13-D of Arms Ordinance. They moved the trial Court for bail on the ground that they were detained for a continuous period exceeding two years without trial being concluded. This bail application was dismissed as the learned Additional Sessions Judge came to the conclusion that the trial was delayed on account of the accused (appellants themselves). The appellants then went before the High Court of Sindh and the learned Judge who heard the application did not agree with the learned Additional Sessions Judge that the delay could be attributed to the accused themselves. However, he held that the appellants were dangerous and desperate persons and consequently their case fell within the prohibition contained in the 4th proviso to subsection (1) of section 497, Cr.P.C. And accordingly they were not entitled to bail. This conclusion was patently reached by the learned Judge upon consideration of allegations of the prosecution case under trial against the appellants.
4. ' In this connection learned Judge observed as under:-- "The applicants were members of an unlawful assembly and were armed with deadly weapons and in prosecution of the common object of that unlawful assembly as many as 4 persons were killed and an attempt was made to kill the 5th person causing him grievous injuries. As such the applicants were not entitled to the benefit of the above proviso. The contention of the learned A.A.- G. Is correct. There can be no doubt about the fact that the alleged offence was most heinous and was committed in such a way that the only conclusion that can be drawn from the same is that the applicants were dangerous and desperate persons."
5. ' In this view of the matter the learned Single Judge of the Sindh High Court by his order, dated 12th November, 1987, dismissed the application of the appellants for grant of bail.
6. ' Leave was granted to consider the contention that the question whether an accused person is a dangerous, desperate and hardened criminal cannot be determined merely on the allegations which are the subject matter of the trial which is yet to be concluded, as that would violate the cardinal principle of criminal jurisprudence that an accused person is presumed to be innocent until found guilty. The further question for examination was that even on merits there was sufficient evidence on record that the allegations of the prosecution were not sustainable on the material relied upon.
7. ' CRIMINAL APPEAL No, 9 OF 1989.
8. ' The two appellants in this appeal alongwith three others are facing trial on charges under sections 302, 307, 148 read with section 149, P.P.C. In the Court of learned Additional Sessions Judge, Multan. The three co-accused were allowed bail but the request of the appellants was rejected by the trial Court. The appellants thereupon moved the Lahore High Court and a learned Single Judge vide order, dated 6th December, 1988, rejected the plea of the appellants for release on bail on the ground of statutory delay, as he was of the opinion that the appellants were hardened criminals which fact was borne out from the number of criminal cases under section 307, P.P.C. And under the Arms Ordinance pending against them. A list of 8 cases was referred to as being pending against Mushtaq appellant and 7 cases pending against Ashfaq appellant.
9. ' Accordingly by order, dated 23rd November, 1988, the learned Single Judge dismissed the application of the appellants.
10. ' Upon a petition for leave to appeal, this Court granted leave to the appellants in view of the fact that similar question of law was pending for decision in the first mentioned appeal (Criminal Appeal No, 20-K of 1987).
11. ' The provision of law which requires interpretation is contained in subsection (1) of section 497, Cr.P.C. Which reads as follows:-- "Section 497.---(1) When any person accused of any non-bailable offence is arrested or detained without warrant by an officer-incharge 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 appear 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 when 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 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 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."
12. ' So far as Criminal Appeal No, 20-K of 1987 is concerned, it will be observed from the reasoning part of the judgment of the High Court as reproduced above, that the learned Judge formed an opinion that the appellants in that appeal were "dangerous and desperate" persons on a consideration of the facts and allegations of the prosecution case for which the appellants were being tried. Mr. Muhammad Hayat Junejo learned counsel for the appellants, therefore, contended that the learned Judge in the High Court erred in basing his opinion on the allegations against the appellants in the case which was being tried, contrary to the well-established rule of criminal justice that an accused person is presumed to be innocent until proved guilty. In other words the submission was that the material upon which such opinion can be formed must be extraneous to the case which is the subject-matter of trial, in that the Court can reach a finding in a criminal trial only on the assessm ent of entire evidence produced before the Court at the conclusion of the trial.
13. We have been informed that there is conflict of opinion amongst the various learned Judges of the Sindh High Court on the interpretation of the 4th Proviso to subsection (1) of section 497, Cr.P.C. In Rahim Bux and others v. The State PLD 1986 Kar. 224, Saeeduzzaman Siddiqui, J, expressed the view that the words "dangerous, desperate or hardened criminal" have no reference to the accusation or allegation in the F.I.R. Or complaint in a pending trial but refer to a person who has been found guilty and has been convicted because the word "criminal" means "a person who has been convicted or adjudged to be guilty of an offence." This view supports the contention of the learned counsel. However, reference may be made to Muhammad Hanif v. The State PLD 1986 Kar.
14. 437, in which Sajjad Ali Shah, J. Dissented from the opinion of Saeeduzzaman Siddiqui, J. In holding that the word "criminal" cannot be given a special meaning as a person already convicted of a crime for in that case, the category of previous convicts having been separately mentioned as disentitled to the privilege of release on bail on the ground of statutory delay, the words under interpretation to the effect that the person is hardened, desperate or dangerous criminal, would be rendered completely redundant and meaningless. According to the learned Judge, therefore, opinion on this question can be based upon the materials available in the case under trial as well as any other material which may be produced by the prosecution to help the Court in formation of such opinion. Somewhat similar view was expressed by another learned Judge of the Sindh High Court in Gul Khan and others v. The State PLD 1986 Kar. 629, in which the word "criminal" was construed in the context of provision under consideration, to mean a person "accused of criminal offence or who is known to be or reputed to committing crime".
15. ' A learned Judge of the Peshawar High Court was faced with a similar problem as under consideration. Before him reliance was placed upon a number of criminal cases for which the accused had been tried and in some found guilty but was finally acquited in appeal. He was also proceeded under the Goonda Ordinance but was discharged by the appellate authority. Learned Judge, in the circumstances, took the view that this material cannot sustain the requisite opinion that the accused before him was a hardened, desperate or dangerous criminal Abdul Halim v. The State PLD 1986 Pesh.
92. The reasons that prevailed with the learned Judge may be stated in his own words: "If a bare charge is allowed to be a proof for a person declaring him a hardened criminal and desperate character, there can be no end to such allegations and there will be no way for a person innocently charged in certain cases. The levy of a charge is somewhat different than to prove it.
16. Unless a person is proved to be guilty and he is convicted thereunder and all the superior forums keep the verdict of conviction intact it cannot be said that the person is a previous convict. If, however, there is nothing against a person except the bare allegation or a mere charge for all intents and purposes he is presumed to be as much a responsible citizen as others of soft character."
17. ' What is to be noted in the above reasoning is that the learned Judge considered even for the clause relating to hardened desperate or dangerous criminal conviction in a Court of law to be necessary. Therefore, the clause under interpretation and the words "previous convict" were used interchangeably and construed to refer to the same class of persons. The objection that such interpretation renders the words of the statute redundant is, therefore, also attracted to this view of the law.
18. ' It is quite plain that the normal rule stipulated in the Third proviso to section 497 was that an under trial prisoner shall be released after expiry of the respective period, without the trial concluding. The Fourth proviso is in substance an exception to the aforesaid general rule contained in the Third proviso. Before the Court applies the exceptional provisions of the Fourth proviso, it has to form an opinion that the accused was a previous convict or a criminal of one of the categories described therein. The words are "in the opinion of the Court". Such opinion cannot be obviously subjective but must be based upon materials placed before the Court, reasonably supporting the conclusion that the person concerned is a criminal of the classes described. The word "criminal" has not been defined. It will not be proper and indeed would be difficult to define it or give it a specific meaning.
19. However, it is a common word of the English language. According to the Shorter Oxford English Dictionary the word carries several meanings, including the meaning-- a person accused of a crime. In the context of the provisions under construction, we feel that the word cannot be construed in the technical sense, namely, that a formal accusation must be made against the person or that he should have been adjudged guilty of a charge in a Court of law. It appears to have been used in the sense of a person who violates the law of the land. The three adjectives qualifying the word "criminal" may also be examined.
20. ' According to the same dictionary the word "harden" has been defined to mean, inter alia, (1) to render or make hard; to indurate, (2) to embolden, confirm, (3) to make callous or unfeeling and
(4) to make persistent or obdurate in a course of action or state of mind. The word "hardened" has also been defined to mean "made hard, indurated; rendered callous; hard-hearted; obdurately determined in a course".
21. ' The same dictionary gives the meaning of the word "desperate" inter alia, in relation to person: driven to desperation hence reckless, violent, ready to risk or do anything.
22. ' The same dictionary gives the meaning of the word "dangerous", inter alia, as fraught with danger or risk; perilous, hazardous, unsafe.
23. ' These appear to be the meanings intended to be conveyed by the legislature by using the words "hardened, desperate or dangerous criminal". Accordingly the view taken by Sajjad Ali Shah, J, appears to be correct and the construction placed by him is in consonance with the intention of the legislature underlying the provision in question in the context of the whole section. In the circumstances we are unable to accept the contention of Mr. Muhammad Hayat Junejo that the facts and circumstances of the prosecution case in which the accused person seeking release on bail is facing trial cannot be taken into consideration. The proposition relied upon in support of the contention to the effect that a finding in a criminal trial can only be reached upon the assessment of entire evidence produced in the Court, is inapplicable, in so far as the opinion reached by the Court for purposes of the 4th proviso has nothing to do with the findings of the Court at the trial.
24. Indeed the conclusions drawn for the purpose of disposal of a bail application cannot be used to the prejudice of the accused as the same are tentative in nature. However, there is no justification for the argument that such an exercise undertaken by the Court, violates the principle that an accused person is presumed innocent until proved otherwise. In subsection (1) of section 497 the legislature has already empowered the Court even before the commencement of the trial to make a tentative assessm ent of the evidence collected against an accused person or likely to be produced in the trial against him, in order to reach the conclusion whether there appears a reasonable ground for believing that he has been guilty of an offence punishable with death or life imprisonment or imprisonment for 10 years. The provision under consideration here is a proviso to the same subsection, and, therefore, it will be reasonable to construe it in the same manner authorizing a Court to take into consideration the evidence collected by the prosecution for purposes of determining whether the accused is a criminal of the categories prescribed therein. Of course the Court can take into consideration and indeed in most of the cases it will take into consideration other materials produced by the prosecution in order to show that the case falls within the prohibitions contained in the 4th proviso.
25. ' We may now consider the question whether there was sufficient material before the Court in each appeal to come to the conclusion that the respective cases of the appellants fall within the prohibitions contained in the 4th proviso to section 497(1), Cr.P.C. So far as Criminal Appeal No, 20- K.Of 1987 is concerned the learned Judge in the High Court as already observed, declined to grant bail on the ground that "nature of the offence alleged to have been committed by them was such that it appearned therefrom that they were desperate the dangerous". It has been pointed out to us that the most important eye-witness Rafiq Ahmad who is said to have been injured during the occurrence, in his version has not implicated the present appellants. It was also submitted that even in the F.I.R. No specific role has been assigned to the appellants except a general allegation. In these circumstances learned counsel urged that this was not a case in which the Courts below were justified in holding that the present appellants were dangerous and desperate persons. Even if the rule of tentative assessm ent is applied to the prosecution case, we are inclined to agree with the submission of the learned counsel that there was insufficient material to support the opinion of the learned Judge that the appellants in Criminal Appeal No, 20-K of 1987 were dangerous and desperate criminals and were accordingly disentitled to bail on the ground of statutory delay.
26. ' So far as Criminal Appeal No, 9 of 1989 is concerned, learned counsel submitted that on the basis of lists of 7 or 8 cases registered against the appellants during the last about 10 years, the learned Judge in the High Court held that bail was rightly refused to them on the ground that they were hardened criminals. Learned counsel contended that mere registration of cases was not, in the circumstances of the case, sufficient to sustain the opinion formed by the Court below that the appellants were criminals of the categories mentioned, because the State counsel failed to apprise the Court the result of these cases. According to the learned counsel in all these cases the appellants were honourably acquitted and in some they were acquitted under section 249-A, Cr.P.C. As no prima facie case was made out. Learned counsel, therefore, emphatically contended that the Court had failed to investigate and analyse the material placed before it by the prosecution. Before us the appellants have produced the certified copies of the orders of the Court in each case to substantiate the submission that these cases were false and instituted on account of enmity. All these cases have been disposed of except the cases in which the present bail application was submitted and the off-shoots thereof which were cases under the Arms Ordinance registered by the police although the arms are licensed.
27. 'In support of his argument learned counsel has also placed reliance on Gul Muhammad v. State 1987 P Cr. L J 737, in which in similar circumstances the Court declined to form an opinion that the accused persons were hardened criminals on account of inadequate material. We find considerable force in the submission of Sh. Ijaz Ali learned counsel for the appellants. It appears that the learned Judge in the High Court did not fully examine the nature of the cases, the facts involved and the result thereof, before placing reliance on the mere factum of registration of cases as sufficient for the purpose of the requisite opinion under the 4th proviso to section 497(1), Cr.P.C.
28. ' We accordingly allow the appeals and consequently the appellants in Criminal Appeal No, 20-K of 1987 and Criminal Appeal No, 9 of 1989 are allowed bail in the sum of Rs, 100,000 (rupees one lac) in each case with two sureties in the like amount to the satisfaction of, in the former, Sessions Judge, Larkana; and, in the latter, trial Court, Multan.
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