' On 13-4-1988, at mid-night, Safdar Khan complainant, alongwith Abdul Hamid, was present inside the room of Adnan Filling Station Petrol Pump Road, Nawanshehr, while Azizur Rehman watchman was on duty outside. The accused-petitioners alongwith their co-accused knocked at the door of the Petrol Pump, pushed the same open and went inside. The other two went towards the watchman. The moment the two persons entered the room they ordered the complainant to hand over the keys and cash to them which he did. Abdul Hamid tried to run out but he was fired at, hitting him on the chest. The other two started firing at the watchman, hitting and injuring him on several parts of his body who chased them for some distance but succumbed to his injuries and died. The assailants took away 4/5 thousand rupees. According to the description given by the complainant all the four were Tashtoon' young men and were fairly dressed and all of them were armed with pistols. The matter was reported by the complainant in Police Station Bagnotar which was recorded vide F.I.R. No,64 under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and 302/307/34, P.P.C.
2. Since nobody was charged in the F.I.R., no arrest could immediately be made. However, the occurrence being of serious nature, hectic search for the culprits was started by a team of Investigating Officers which was constituted for the purpose by the Superintendent of Police.
Ultimately the present petitioners namely, Sajjad alias Jaida and Mumtaz and their co-accused were arrested, two of them are still at large. In the course of investigation Sajjad petitioner made a confessional statement on 2-8-1988 in which he made clean breast of the occurrence, from the start to finish, involving himself, Mumtaz petitioner and the other two co-accused. Imtiaz the co- accused of the petitioners also made a confessional statement on 27-6-1988 who implicated Sajjad for the occurrence, giving him the role of entering the room of the petrol pump and firing therein. Both the petitioners were separately arrayed in regular identification parade in which the prosecution witnesses correctly identified them. The investigation apparently consumed sufficient time as the occurrence was of dead of night and the police had to make efforts to unearth the culprits and also because they had to arrest the absconders one of whom is still at large.
' Anyhow, complete challan was put in Court and the learned Magistrate vide his order dated 21-12- 1989 has sent up the accused for trial before the Court of Session. The present petitioners submitted bail applications to the learned Additional Sessions Judge, Abbottabad solely on consideration of 3rd proviso to section 497, Cr.P.C. On account of their having remained in jail for two years, without regular trial. The learned Additional Sessions Judge vide his order dated 20-11- 1990 declined to grant their prayer only on the ground that proviso 3rd of section 497, Cr.P.C. Was not attracted to them as they were hardened, desperate and dangerous criminals. Hence the instant application for bail on the same grounds.
3. I have heard Mufti Muhammad Idris, Advocate for the petitioners, Muhammad Aslam Khan, AA.- G. For the State and have perused the record of the case with their assistance.
4. The learned counsel strenuously argued that the petitioners admittedly remained in jail for more than 2 years without the commencement of the trial and that they are as of right entitled to be released on bail. According to him the exception appended to the Proviso that the benefit shall not be extended to hardened, desperate and dangerous criminals was not attracted to the petitioners because nothing was brought on the record to establish that they had been connected with any offence to dub them as such criminals. He, however, conceded that certain F.I.Rs, have been brought on the file pertaining to the offences of similar nature but they are still sub judice before competent Courts of law and so long as they do not end in the conviction of the petitioners, they cannot be taken into consideration to deprive the petitioners of the benefits allowed to them by the law.
5. The learned Assistant Advocate-General on the other hand submitted that the petitioners in view of the heinous nature of the instant tragedy and their involvement in other cases of similar nature, the trial Judge rightly disallowed them the concession of proviso 4th of section 497, Cr.P.C.
6. I have considered the arguments of the learned counsel for the parties.
7. The learned counsel for the petitioners cited the judgment of the august Surpreme Court in case Mounder and others v. The State reported as PLD 1990 SC 934 and referring to the last sentence of head-note 'D' submitted that mere factum of registration of cases was not sufficient for the purpose of requisite opinion under the 4th proviso to section 497(1), Cr.P.C. I have minutely gone through the same authority and I would like to quote a para from the said judgment as under:- "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. Therefore, opinion on this question can be based upon the material 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."
' It was thus left to the discretion of the Court to determine on the material available before it whether the accused falls in the category of hardened, desperate or dangerous criminals or not.
8. In the case of Zulfiqar All and another v. The State reported as 1990 Pakistan Criminal Law Journal page 822, a learned Judge of Karachi High Court after review of reported cases on the point observed as follows:- "Ordinarily the word 'or' is used disjunctively. It is the duty of a Court to primarily adhere to the strict legal interpretation of the words used. The word 'or' used in the fourth proviso to section 497 of the Code of Criminal Procedure, 1898, indicates an alternative. It, therefore, follows that a hardened, desperate or dangerous criminal need not be a previous convict. There is no better way of approaching the interpretation of a provision of law than to endeavour to appreciate the general object that it serves and to give its words their natural meaning in the light of that object. The primary duty of the Court is to find the natural meaning of the words used in the context in which they occur. The word 'criminal' used in fourth proviso is, therefore, to be understood in its ordinary meaning, viz. a person involved in a crime. Clause (I) of section 110, Cr.P.C. May also be looked into with a view to find out the intention of the legislature in using the words 'desperate' or 'dangerous' in the fourth proviso.
' A person of desperate and dangerous character means a person, who has a reckless disregard of the safety and property of others. The characteristic of being desperate and dangerous is a personal attribute and, therefore, the manner in which an accused person has conducted himself at the time of commission of offence is also an important consideration in arriving to a finding of this nature. The opinion of the Court to this effect which is always tentative in nature can be formed on the basis of--
(i) nature of accusation and conduct of accused at the time of alleged incident,
(ii) previous record of the accused which may include his earlier prosecution and
(iii) material placed before the trial Court like reports of concerned police and jail authorities. It is the cumulative effect of all the three aspects that may finally determine a tentative opinion in this behalf."
It is thus apparent that an accused person charged with an offence punishable with death can claim his release on bail as of right if he has been detained for a continuous period exceeding 2 years and whose trial for such offence has not concluded, but this right is subject to the proviso that he is not (i) a previously convicted offender; (ii) or a person who, in the opinion of the Court is hardened, desperate or dangerous criminal.
' The plain meaning of the proviso obviously is that if he has a previous conviction to his credit, he will not be extended the concession at all. However, if he is alleged to be a hardened, desperate or dangerous criminal, the matter is left to the opinion of the Court to form a tentative assessment from the material on record, whether he falls in the category of hardened, desperate and dangerous criminals or not. In the instant case copies of the F.I.Rs, referred to in the impugned judgment of the Sessions Judge, prima facie involve the petitioners in offences involving moral turpitude as well as of dangerous nature and it can be safely inferred therefrom that they live on the booty acquired from the commission of thefts, robberies and deities and they do not deserve to be freed to indulge in their nefarious activities in the interregnum till the final disposal of the cases pending against them. The learned lower forums, have thus, from the tentative appraisal of the record, rightly come to the conclusion that the accused-petitioners, from their conduct, have disentitled themselves to the concession of bail and I am not persuaded to differ with them.
Consequently finding no merit in the instant petition, the same is dismissed.