' On the report of Muhammad Jehangir complainant, a case was eventully registered under section 302/34, P.P.C. Vide F.I.R. No.64, dated 7-5-1989, in Police Station, Sherwan, wherein Sultan Pervaiz, the accused-petitioner herein, was charged for stabbing the complainant who later on succumbed to the injuries so caused. His father Abdul Latif was also charged as an accomplice.
2. The same day a cross-case was registered in the same Police Station Sherwan vide FIR No. 63 under section 307/325/341/34, P.P.C. Lodged by Abdul Latif the co-accused in the instant case, wherein not only Muhammad Jehangir the deceased but one Ali Bahadur and another were also charged for causing blunt-edged and firearm injuries to the present accused party.
3. After the arrest, in the earlier round of their efforts to be released on bail, while on petitioner's side Abdul Latif was admitted to bail and the petitioner was refused the same, vide an order of this Court dated 30-10-1989; from amongst the complainant party Suleman was granted bail and the plea of Ali Bahadur in this, regard was not accepted, vide a separate order of this Court of the even date.
4. This is the second round of seeking bail on behalf of both the accused in the said two cases wherein third proviso to subsection (1) of section 497, Cr.P.C. (hereinafter referred as third proviso) has been pressed into service. It transpires that whereas Afi Bahadur's attempt in this regard proved fruitful and he was admitted to bail vide an order of the Additional Sessions Judge, Abbottabad dated 19-5-1990, the efforts of the petitioner herein proved abortive in that his application for bail was rejected under fourth proviso to section 497(1), Cr.P.C. (hereinafter referred to as the fourth proviso) vide the order of the learned Additional Sessions Judge, Abbottabad dated 19-6-1991. Hence the instant petition.
5. I have heard Mr. Muhammad Akbar Khan Swati, Advocate, learned counsel for the petitioner and Muhammad Aslam Khan, learned Assistant Advocate-General for the State and Qazi Muhammad Arshad, Advocate, learned counsel for the complainant at length and also examined the record of the case with considerable degree of care.
6. It is contended on behalf of the petitioner that the petitioner, having been arrested on 7-5-1989 has admittedly remained in custody for continuous period exceeding two years and his trial having not yet concluded, the petitioner is entitled to the statutory concession of bail. It is further contended that the grounds on which the learned Additional Sessions Judge has based his impugned order are not in consonance with the intent and purpose of the fourth proviso and, being ill-founded, the impugned order is liable to be set aside. It is thus asserted that this would also be in conformity with the principle of consistency in that when earlier the petitioner herein and Ali Bahadur accused, in the cross case were refused bail by this Court on merits, later Ali Bahadur has been extended the benefit of third proviso and that the petitioner cannot be discriminated, all the more when, on the side of the accused party, some of them sustained firearm injuries allegedly caused by the complainant party herein.
7. As against this the learned counsel for the State while supporting the impugned order of the learned Additional Sessions Judge, submitted that the petitioner has allegedly been denied the concession of bail by the learned Additional Sessions Judge under third proviso when read with fourth proviso in that, according to the learned counsel, he has been validly held as desperate and dangerous criminal. He, therefore, maintained that the impugned order of the learned Additional Sessions Judge appears to be founded on reasonable grounds and as such not liable to be interfered with.
8. Opposing the bail petition, the learned counsel for the complainant submitted that the number of injuries inflicted on the deceased with a knife when eventually proved fatal, is by itself sufficient to indicate the desperate nature of the petitioner and as such he is not entitled to be released on bail under third proviso when read with fourth proviso to clause (1) of section 497, Cr.P.C.
9. I have given my serious consideration to the submissions made by the learned counsel for the parties in support of their respective pleas.
10. A reference to the record discloses that Sultan Parvaiz petitioner made a confessional statement wherein, while supporting the counter-version of the case registered on their behalf as per FIR No. 63, he has stated that when waylaid by Jehangir and others he ran towards the fields for saving himself but deceased Muhammad Jehangir chased him and caught him. He also alleged that Muhammad Jehangir drew a knife and was going to stab him and, after snatching the same from Muhammad Jehangir, he inflicted blows therewith causing him injuries-in self-defence.
11. The learned Additional Sessions Judge while repelling the plea of statutory entitlement raised on behalf of the petitioner under Third proviso "I have considered the arguments of the learned counsel for the parties read with material placed on record and I am of the considered view that the case-law referred by the learned counsel for the complainant is more relevant to the facts of the present case in which the accused had killed the deceased with "chhuri" by inflicting fatal injuries. The perusal of the record also shows that the deceased Jehangir then injured had himself lodged the report and just before the occurrence he was praying at the grave of his parents in the, morning time when suddenly he was fire hit with stone by the accused and then he gave the "chhuri" blows. Perusal of the record also shows that the bail application of the petitioner on merits was rejected upto High Court level. In the circumstances of the case, I am of the considered view that the accused is a desperate and dangerous criminal and there is every likelihood of his absconsion in case he is admitted to bail."
12. The fourth proviso to clause (1) of section 497, Cr.P.C. Reads as under:- ' 497.--(1)...
' Provided ......
' Provided..
' Provided .........
"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"
' A bare reading of the aforeqouted provision would show that a clog is put on, the third proviso in that it will not apply to a previous convict offender or to a person who, in the opinion of the Court, is a "hardened, desperate and dangerous criminal". It will thus be seen that for the first part of the embargo while the Code of Cr. P.C. Provides a procedure to prove the previous conviction (s), if any; for the latter part it is the opinion of the Court which matters alone, the connotation, import - and lexicon meaning of the words "hardended, desperate or dangerous criminal" notwithstanding.
13. Whether such meterial was available on the record before the learned Additional Sessions Judge for forming such an opinion as is reflected in the aforequoted observations of the impugned order is a question that begs for an answer and I regretfully find that the answer cannot but be in negative.
14. It will be pertinent to note that in forming such an opinion while it ought to be an objective instead of subjective process, it has to be founded on such legally admissible material available on the record as may legitimately provide reasonable grounds to arrive at an inescapable conclusion that the facts of the case, when considered in entirety, are covered by, and attract, the law as embodied in the fourth proviso. .
15. And, had the learned Additional Sessions Judge taken into consideration the overall scenario of the occurrence, by placing the prosecution case and counter-version in juxtaposition; I am sanguine that the ultimate outcome of the plea of hail made by the petitioner would have been different than the one impugned, inasmuch as the material available on the record was too meagre qualitatively as well as quantitatively to deny the petitioner his statutory right under the third proviso by misapplying, and under the coverage of, the fourth proviso.
16. Let it be borne in mind that in incorporating third proviso in the Code of Criminal Procedure, there has been an object in view in that the trial of an accused person should ordinarily conclude within such periods as are specified in clauses (a) and (b) thereof, failing which a valuable right accrues to an accused who is in continuous detention for the respective period and in exercise thereof, he can successfully claim to be released on bail. Thus the fourth proviso, which is a clog on the third proviso, shall have to be construed rather strictly and unless proved by previous conviction(s) to his credit or unless there is ample and convincing material on the record indicating the accused person as a hardened, desperate or dangerous criminal; it will be not proper on the part of the Court to form its opinion mechanically or without application of its mind to all the facts of the case and applicability of the law relevant thereto.
17. For to deprive an accused 'person of a right conferred on him under the law in such a manner would tantamount to not only frustrating the very aim and object of the law but also to setting the same at naught and thus defying the will of the legislature.
18. Viewed in the perspective of the foregoing discourse, I have no hesitation in holding that the opinion formed by the learned Additional Sessions Judge as per his impugned order is neither based on the facts brought on the record nor is in conformity with the law relevant thereto.
19. Resultantly while I allow this petition, I hereby order that the petitioner shall be released on bail provided he furnishes a bond in the sum of Rs.1,00,000 (rupees one lac) with three local sureties of means in the like amount each to the satisfaction of the Ilaqa/Duty Magistrate.