' Having been accused, alongwith his brother Gul Muhammad Khan, of the abduction of one Ghani-ur-Rehman and having secured their release on bail in that case, the petitioner, alongwith his said brother now stand accused of having shot one Ghulam Sarwar to death. This is vide F.I.R.
No, 641 dated 29-10-1987 of Police Station Mughalpura, Lahore.
2. The said Ghulam Sarwar deceased was a prosecution witness against the petitioner and his brother in the above-mentioned abduction case which bears F.I.R. No, 503 dated 29-8-1987 of Police Station, Mughalpura, Lahore.
3. The learned counsel submits that the petitioner was arrested in October, 1987 and has remained in continuous detention eversince without the trial having concluded. Contends that in view of the third proviso to section 497(1), Cr.P.C., the petitioner is entitled to be admitted to bail.
4. The trial in question has remained pending on account of the absconsion of the co-accused of the present petitioner, namely, Gul Muhammad who also happens to be the petitioner's real brother. This Gul Muhammad has since been arrested and it is stated that the trial is now ripe for commencement.
5. The case of the petitioner is that he cannot be penalized for an act of his co-accused who is admittedly not his agent and thus any delay occasioned by an act of a co-accused cannot be attributed to the petitioner.
6. Be that as it may, having considered the facts and the background of the present case, I am of the opinion that the provisions of the fourth proviso to section 497(1), Cr.P.C. Are attracted to the case of the petitioner which disentitle him to the grant of bail on the statutory ground of delay in the disposal of the trial.
7. It is on record that the petitioner and his co-accused Gul Muhammad were accused of the abduction of one Ghani-ur-Rehman noticed above and that the deceased of the present case, namely, Ghulam Sarwar was a prosecution witness against them.
8. Having been admitted to bail, the petitioner now stands accused of the murder of this prosecution witness in order to eliminate the evidence available against them. The petitioner thus appears to be a desperate and a dangerous criminal.
9. These two expressions have been considered in depth by the Supreme Court in Moundar's case PLD 1990 SC 934 and it has been authoritatively laid down that the word 'criminal' does not necessarily mean a person who has been previously convicted or involved in criminal cases'. The relevant portion of this judgment is reproduced below:-- "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.
' 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."
10. This judgment also permits the Courts to take into consideration the facts and the allegations levelled, to find out whether the accused person in question was or was not a desperate, dangerous or a hardened criminal.
11. As has been noticed above, the petitioner and his brother who stand accused of the present murder were the persons accused of the abduction of one Ghani-ur-Rehman and the deceased of the present case was a prosecution witness against them. It has been specifically alleged in the present F.I.R. That the petitioner and his co-accused had murdered Ghulam Rasool deceased in order to eliminate the prosecution evidence available against them in the abduction case.
12. The learned counsel for the petitioner submits that the Investigating officer had since opined that Naik Muhammad petitioner was not involved in the abduction of Ghani-ur-Rehman abovementioned. Certain extracts alleged to be a part of the case diaries of the abduction case, have been placed on record in support of this claim.
13. In the first instance, I do not feel persuaded to attach any value to these extracts of the case diaries because the petitioner is not legally entitled to be possessed of the same and secondly, even if any weight was to be attached to this plea of the petitioner, the same did not falsify the fact that Naik Muhammad petitioner and his brother Gul Muhammad were accused of the abduction of Ghani-ur-Rehman or that Ghulam Sarwar deceased was a prosecution witness against these two in the said abduction case.
14. The fact that the petitioner being an accused person in an earlier case committed a murder only to eliminate the prosecution evidence available against him, does, at least prima facie, demonstrate that the petitioner was reckless, violent and was ready to do anything for his benefit.
He thus appears to be a person whose presence in the society would be fraught with danger and would be hazardous to other members of the society and more so, to the witnesses of the murder case.
15. Consequently, holding that the petitioner is a desperate and a dangerous criminal who falls within the ambit of the fourth proviso to section 497(1), Cr.P.C., I find that he is not entitled to the relief permissible under the third proviso to the same section.
16. This petition, therefore, has no merit and is accordingly dismissed.