Muhammad Hafiz petitioner herein is an accused alongwith two others for the murder of Muhammad Ashraf in a case registered vide F.I.R. No.82, dated 14-5-1990 under section 302/201/34, P.P.C., Police Station Khanpur.
2. The petitioner was arrested on 22-5-1990 after the rejection of his pre arrest bail application.
Thereafter he attempted for bail but was refused by the learned Sessions Judge. Haripur. Now he has applied under third proviso of section 497(1), Cr.P.C. That since he has completed 2 years in jail and, the trial has not been concluded therefore he may be released on bail.
3. The prosecution case is that on 13-5-1990 at 8-30 p.m' the petitioner went to the house of the deceased and took him on the pretext to harvest the wheat crop. He did not return at night and on the next morning his dead body was found in a `Kassi'. The deceased's mother charged the - petitioner alongwith two others namely, Nasar and Sajjad for the murder of her son Muhammad Ashraf deceased.
4. Learned counsel for the petitioner contended that the delay in the conclusion of the trial is not attributable to the petitioner and since statutory period of 2.Years has expired, be is entitled as of right to be released on bail under third proviso. Of, section 497(1), Cr.P.C. He submitted that the accused petitioner is neither a previous convict nor a hardened, desperate or dangerous criminal hence there is no impediment in enlarging him on bail under the said proviso.
5. Opposing the bail application, the learned counsel for the complainant submitted that the deceased was taken by the accused petitioner from his house on the pretext to harvest the wheat crop but was killed by him and his companions in a very callous and brutal manner. He submitted that had the deceased any illicit relations the sister of the petitioner, he would not have gone with the accused petitioner. The deceased had a clean conscience, therefore, he believed the petitioner's version and accompanied him at night time. He argued that in such state of cordial relationship the deceased never expected that he would be done to death at the hands of the accused --petitioner. He referred to the statements of Mst. Shamila Begum and Mst. Jamila Begum (sisters of the petitioner) recorded under section 161, Cr.P.C. Wherein they have categorically denied any illicit relationship with the deceased, which would show that the deceased,, was murdered by the petitioner on suspicion. He referred to the post-mortem report, which indicates that the deceased was mercilessly inflicted as many as 11 injuries smashing his skull and the face bones.
The detail of injuries is given below:
(1) Incised wound 2" x .1/2" x bone deep, across the right forehead 1-1/2" above the eyebrow. The underlying bone fractured and depressed, causing deformity.
(2) Incised wound 1-1/2" x 1/4" x bone deep across the outer half of the right eyebrow.
(3) Incised wound 2" x 1/3" x bone deep across the medial part of left eyebrow and the forehead.
The underlying bone fractured. Brain substance present in the wound.
(4) Lacerated wound 1" x 1/4" x skin deep over the left eye-lid with an abrasion 1-1/2",just below the eye.
(5) Two lacerated wounds, each 1-1/2" x 1/6" bone deep with abrasion, between the eyebrow, underlying bone fractured.
(6) Abrasion 1" x 1/4", over the middle of bridge and both sides of the nose. Nasal bone fractured and depressed.
(7) Lacerated wound 2" x 1/2" across the middle of back of skull.
(8) Abrasion 1" x 1/2" around,, the outer end of right eye. Eye-ball damaged and swollen and another abrasion 1" x 1/4" over the right,, upper eyelid.
(9) Abrasion 4" x 1/2", on the back of left chest medial part of scapular region.
He further submitted that third proviso of section 497(1), Cr.P.C. Is controlled by fourth proviso of the said section which prescribed that the provisions of third proviso shall not apply to the previous convict or to a hardened, desperate or dangerous criminal. The petitioner has acted in a desperate manner, therefore, he is not entitled to the concession of third proviso of section 497(1), Cr.P.C.
6. Learned Assistant Advocate-General reiterated the contentions of the learned counsel for the complainant and submitted that third proviso in view of 1 the conduct of the petitioner is not attracted in the instant case.
7. I have duly considered the submissions of the learned counsel for the parties and have gone through the record of the case.
8. Third proviso to section 497(1), Cr.P.C. Is subject to fourth proviso and while considering bail matter under the former proviso, it has to be tested at the touchstone of the later proviso. For convenience sake both the provisos are reproduced hereunder:-- "Section 497(1) ...............................................................................................
Provided ..........................................................................................................
Provided .
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 an 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."
The ordinary and the plain interpretation of the, fourth proviso is that the provisions of third proviso shall not be applicable to a previously convicted offender or to a person, who in the opinion of the Court, is a hardened, desperate or dangerous criminal. The plain dictionary meaning of `desperate' is despairingly reckless; furious, `dangerous' means full of danger; arrogant and `criminal' means guilty of crime; violating laws. Since the word `or' has been used in-between `previously convicted offender' and `to a person who in the opinion of the Court is a hardened, desperate or dangerous criminal', therefore, it follows that a hardened, desperate or dangerous criminal may not be previous convict. The word `criminal' used in the fourth proviso, as stated above, would plainly mean a person who violates the law. Legislature by adding the fourth proviso to section 497(1), Cr.P.C. Restricted the powers of the court to allow bail in all the cases where the accused remained under detention for the-provided statutory period and decided charge mat previous convicts a hardened, desperate or dangerous law-breaker shall not be entitled to the" benefit of third proviso.
Except for the previous convict, it is not required to trace out the history of the offender has acted in a ascertained whether the offender has acted in a hardened, desperate - or dangerous manner.
Keeping in view the plain meanings of words even above the Court can form its opinion from the material placed before it whether the violator of law has acted in a reckless, furious and arrogant manner, in so, he can be held to be desperate and dangerous criminal. Testing the conduct and the manner in which the instant crime was committed with the above criteria, it is evident that the accused-petitioner while committing the offence acted in a desperate manner. Hence he is not entitled to the benefit of third proviso to section 497(1), Cr.P.C.
8. There, is yet another aspect of the case. Challan of the case was put in Court of the Resident Magistrate Detgali on 3-3-1991 who transmitted the case file to Additional Sessions Judge-11, Haripur on 29-4-1991. Since 20-5-1991 the case was being put off from one date to another for the attendance of the petitioner's co-accused who are his cousins and serving in Army/Navy. Accused Nasir appeared in. Court on 7-9-1991 while accused Sajjad was produced by Pak. Navy Officials on 9-8-1992, and supplementary challan was put in on 3-9-1992. Hence, the prosecution cannot be blamed for causing delay in conclusion of the trial. The trial is pending since 20-5-1991 but it could not proceed due to the absence of Nasir and Sajjad co-accused of the petitioner. C Hence, on this ground too, the delay cannot be attributed to the prosecution the application deserves dismissal.