Applicant Khan alias Haji Khan who is detained in Crime No.68 of 1988, Nasirabad Police Station under section 302-114/34, P.P.C. Applied for bail before IInd Additional Sessions Judge, Larkana, mainly on the ground of statutory delay, but his prayer was refused as he was found to be a previously convicted offender. He has now approached this Court with the same prayer.
2. The question that has been raised in this bail application relates to the interpretation of the words "previously convicted offender" used in fourth proviso to subsection (1) of section 497, Cr. P.
C.
3. There are certain facts, which are not in dispute. They are;
(i) Applicant Khan alias Haji Khan is facing a murder charge punishable with death.
(ii) The applicant was arrested on 11-6-1988 and he is in continuous detention for a period exceeding two years.
(i.e) The trial against the applicant has not been concluded upto this time.
(iv) The delay in the trial has not been occasioned by an act or omission of the applicant or any other person acting on his behalf.
(v) In the opinion of the Court, the applicant is not a hardened, desperate or dangerous criminal.
4. The third and fourth provisos to subsection (1) of section 497, Cr. P C. Were examined by me in the case of Jumo v. The State, reported in 1989 P Cr. L J 1235, and it was held: "Inordinate delay in disposal of a case amounting to an abuse of the process of law, was considered as a ground for allowing bail to the accused even in a murder case, but this exercise was controlled by the discretion of the Court concerned. The third proviso to section 497 of the Code of Criminal Procedure, 1898, which was added by the Criminal Procedure (Second Amendment) Ordinance, 1979, made the ground of delay certain and the accused were extended concession of bail as of right, if the requirements of this proviso were satisfied. The case of Nazir Hussain v. Ziaul Haque, reported in 1983 SCMR 72, is relevant in this behalf. This concession, however, did not achieve the desired result of speedy justice and instead the habitual offenders, who were benefited by this proviso played havoc in the society. In order to meet this exigency the Legislature qualified this proviso with the fourth one, which was added in the year 1983 in the following words:-- Provided further that the provisions of the third proviso 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.
The Legislature has, therefore, denied the concession of bail on the ground of delay to the following persons:
(i) a previously convicted offender;
(ii) a person who, in the opinion of the Court is a hardened desperate or dangerous criminal."
5. The convicted persons include persons who have been convicted by the Court for an offence with which they are charged. Admittedly the applicant was charged for the offence under section 457/394/397, P.P.C. And section 13-D of the Arms Ordinance, 1965, by learned Sessions Judge, Larkana, who found him guilty for the offence under section 457/382/324, P.P.C. And section 13-D of the Arms Ordinance, 1965, and vide judgment dated 27-4-1973 sentenced him to imprisonment for various terms. A photo-copy of this judgment is placed on record. The fact that the applicant is a "previously convicted offender" is, therefore, not in dispute. The case of the applicant is fully covered by fourth proviso to subsection (1) of section 497, Cr.P.C.
6. The Legislature having not defined the scope of "previously convicted offender" in fourth proviso to subsection (1) of section 497, Cr.P.C., has made the work of the Courts difficult. It must, however, be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them a complete answer. In the skeleton provided by the Legislature the Courts have to create an organism, which should be in consonance with the intention of Legislature. Bearing this principle in mind I shall endeavour to construe fourth proviso to subsection (1) of section 497 Cr.P.C. The effect of this proviso is to restrict the scope of the third proviso, which empowers the Court to grant +ail on account of statutory delay, if they conditions laid down therein are satisfied. The words "previously convicted' offender" isolated from the context would naturally be interpreted as a convicted person, even for violation of traffic rules.
This could never be the intention of Legislature. In order to find out the intention of Legislature we will have to read the words `previously convicted offender' together with the words, `the person who, in the opinion of the Court is a hardened, desperate or dangerous person." Reading the above words together it is apparent that a criminal who by character is dangerous and who is convicted for an offence involving moral turpitude is in fact covered by the words "previously convicted person" used in fourth proviso to subsection (1) of section 497, Cr.P.C. My own observations made in the case of Mr. Idrees v. The State, reported in 1990 P Cr. L J 655, arse relevant in this behalf and are reproduced below: "The object in keeping a person under trial in detention is to prevent repetition of the offence or perpetrating some other offence. On the face of this record the applicant appears to be a dangerous criminal by habit. The word habit implies a tendency or capacity resulting from the repetition of the same acts. It implies frequent practice or use and connotes depravity of character as evidenced by frequent repetition."
7. I am fortified in my view by the case of Sultan Alam v. The State reported in 1986 P Cr. L J 1672, and cannot do better than quoting the weighty observations made therein in extenso: "Learned P.P. Has, however, vociferously contended that since the petitioner is a previously convicted offender, as shown above, he cannot be granted bail by this Court- as proviso to 3rd proviso to subsection (1) of section 497, Cr.P.C. Makes 3rd proviso inapplicable to such persons and thus puts an embargo on the powers of this Court to grant bail to such a person even if statutory period of detention has expired without his trial having been concluded. However, having regard to the purpose for which proviso to third proviso appears to have been promulgated, I am of the view that conviction for offence of disobedience of order of a Court to appear before it is not a conviction in an offence which would make the third proviso inapplicable to such a previously convicted offender. The proviso to 3rd proviso to subsection (1) of section 497, Cr.P.C. Lays down 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. The purpose of later part of the said proviso is clearly to protect the society against crimes, which are most likely to be committed by hardened, desperate and dangerous criminals if they are released on bail even after they have suffered statutory period of detention without their trial having been concluded. Previously convicted offenders have been placed at par with hardened, desperate and dangerous criminals because their previous conviction joined with the circumstance of their having committed another offence now is a testimony to their propensity towards crime and they have also been considered to be likely to commit crimes when released on bail after enquiry of statutory period of detention in the judicial lock-up in the case against them.
The nature of offence of which such an accused person has been convicted previously is normally an index to the type of offence he is likely to commit again. In the present case it is an offence of disobedience of an order of a Court. However, the offences against which the society or the State needs protection are in my opinion, offences of substantive nature inflicting or likely to inflict serious type of injury to the society or the State. Grant of liberty to an accused person who has already remained in judicial lock-up for the statutory period of detention without his trial having been concluded should not be denied simply on the ground that he is likely to commit minor offences or relatively unimportant offences if released on bail. In these circumstances, I am inclined to think that the words "previously convicted offender" mentioned in the said proviso to the 3rd proviso to subsection (1) of section 497, Cr.P.C. Is an offender who has previously been convicted of an offence involving moral turpitude or an offence detrimental to national interests or interests of the society as a whole. The benefit of third proviso to subsection (1) of section 497, Cr.P.C. Cannot be denied to each and every convicted person irrespective of the nature of the offence of which he has been convicted previously and distinction has to be drawn between a person who is convicted of an offence of a serious nature and one who is convicted of an ordinary offence not impinging upon his character as a good citizen of the State The conviction for an offence of disobedience by an accused person o the order of a Court requiring him to appear in the said Court does no appear to my mind to be a conviction which could bar an accused person from availing of the benefit of third proviso to subsection(1) of section 497, Cr.P.C. As the said disobedience does not show him to be a man of depraved character likely to commit offences of serious nature after he is enlarged on bail. On this view of the said proviso, therefore, I think that the mere fact that the accused has been convicted of the offence of disobedience of the order of the Court to appear before it, does not make the said third proviso inapplicable to the case of petitioner and accordingly does not bar the grant of bail to the accused petitioner on the basis of expiry of statutory period of more than one -year's continuous detention fixed by the said third proviso and he is entitled to grant of bail on the basis of said third proviso notwithstanding his said conviction:'
8. The term `moral turpitude' as defined in Ramnatha Aiver's Law Lexicon means, "anything done contrary to justice honesty, principle, or good morals; an act of baseness; vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule or right and duty between man and man".
9. There are several factors to be considered in assessing the practicability of such an approach.
Firstly, it is not always easy to determine how an accused will behave when he is released on bail.
The past conduct of an accused is an important consideration in making an inference of this nature. Therefore, when a person who is adjudged guilty by a competent Court repeats the act of similar nature he must be denied the concession of bail, even if he satisfies the conditions laid down by third proviso to subsection (1) of section 497, Cr.P.C. On this score alone the application for bail made on behalf of applicant is liable to be dismissed.
10. The policy of criminal law is to bring accused persons to justice as speedily as possible and a "previously convicted person" has also got a right to claim an early trial. He cannot be detained indefinitely and if the delay in disposal of his case is shocking, which may amount to the abuse of process of law, the concession of bail can be extended to such a person by relaxing the conditions laid down in fourth proviso to subsection (1) of section 497, Cr.P.C. The cases reported as Aurangzeb v. The State 1980 P Cr. L J 1191 and Muzaffar-ul-Hassan v. The State 1987 P Cr. L J 950 are relevant on this point. In Jalal and another v.
The State reported in 1988 P Cr. L J 1596 a learned Judge of this Court allowed bail to accused person who were in custody for four years in spite of the finding that they were desperate, dangerous and hardened criminals. Any reckless exercise of discretion should, however, be avoided and bail to previous convicts may be granted only in very exceptional circumstances when the delay on the face of the record is shocking.
11. The present applicant was arrested on 11-6-1988 and he is in detention for about 2-1/4 years. The case is at concluding stage and I am told that only few witnesses are to be examined now. In this view of the matter the bail application has got no merits and is dismissed accordingly. The trial Court is, however, directed to conclude the trial against the applicant and others within a period of four months from the receipt of this order.
MA.K/K-229/K