Sahibzada son of Ghani-ur-Rehman is implicated in case F.I.R. No.180 dated 25-4-1989 under section 392/342, P.P.C. Read with section 14, Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 Police Station Katlang, District Mardan. The accused/petitioner was charged in some other cases and was in the lock-up when the police obtained his custody in the instant case on 27-2-1990. The trial in the case has commenced since 9-4-1992 and at present is in abeyance as the case file has been requisitioned by this Court for decision of the instant application for grant of bail. Earlier applications for grant of bail on merits were dismissed by the Magistrate and the Sessions Court. The accused/petitioner instituted applications for grant of bail under the third proviso of section 497, Cr.P.C. And the same were dismissed by the Magistrate and the learned Additional Judge I of Sessions Court, Mardan under the 4th proviso of section 497, Cr.P.C. By forming opinion that the accused/petitioner is a hardened and desperate criminal.
2. The learned counsel for the accused/petitioner contended that the accused/petitioner is entitled, as of right to the grant of bail under section 497, Cr.P.C. As the trial has not concluded within two years of his arrest. The opinion formed by the learned Judge of the trial Court under the 4th proviso is not warranted under the law as the accused/petitioner has not been convicted of an offence which may point out that the accused/petitioner is a hardened/desperate or dangerous criminal. It was further contended that the co-accused Hukam Dad, Shafiullah and Muhammad Israr have been allowed bail on the merits of the case and there is no evidence or material to connect the accused/petitioner with the alleged offences. The learned counsel for the State submitted that the accused/petitioner is charged in a number of cases for such like offences and the learned Judge of the trial Court has rightly opined that the accused/petitioner is a hardened and desperate criminal.
3. In this case the occurrence has taken place on 24-4-1989 and the accused/petitioner was taken into, custody by the police on 27-2-1990 from prison where the accused/petitioner was in detention in some other cases. The accused/petitioner made confessional statement on 4-3-1990 and has been identified by the complainant. Reasonable grounds exist for believing that the accused/petitioner is guilty of the offences with which he is charged. Therefore, the application does not merit consideration on this factual aspect of the case.
4. The 4th proviso is an exception to the third proviso of section 497, Cr.P.C. This proviso overrides the mandatory provision of grant of bail to an accused person who has remained in detention for a continuous period exceeding one year on the charge of the offence not punishable with death or has remained in detention for a continuous period exceeding two years on a charge of offence punishable with death and the trial for such offences has not concluded. The word `criminal' has not been given any definition either under section 497, Cr.P.C. Or other provisions of Code of Criminal Procedure. The ordinary dictionary meaning of `Criminal' in noun is `a person guilty of crime' and adjectively `involving or concerning crime'. This word `Criminal' necessarily will not include a previously convicted accused person as the word `convicted offender' has been used disjunctively in the proviso. The 4th proviso of section 497, Cr.P.C. Is exception to the effect, firstly that the third proviso shall not apply to a convicted offender and secondly to a person who in the opinion of the Court is a hardened, desperate or dangerous criminal. In the first instance, no opinion is to be formed by the Court whereas in the second instance, the Court is to form an opinion in the circumstances and facts of each case against a person, being a hardened criminal, desperate criminal or dangerous criminal. This opinion of the Court is neither a decision nor a judgment or for that matter an order based on evidence produced before the Court but an observation of the Court about a person who is charged with an offence in the circumstances and facts of each case and thus subjective in its application to the case and the guilt, involvement or concern of the person with the crime.
5. The accused/petitioner is charged with offences of similar nature in a number of cases of various police stations as mentioned in the Zimnis of this case and consequently opinion about the accused/petitioner can be formed; of his being a dangerous criminal.
6. The application is, therefore, dismissed and the case file of the learned Judge of the trial Court should be sent immediately for holding the trial of the accused/petitioner and other accused persons.
N.H.Q./1381/P