' This is an application for bail made on behalf of applicant Karimi Rehmatullah who is detained in Crime No,17 of 1990 P.N.C.B.P.S. Gulshan-eIqbal, Karachi, under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 (wrongly mentioned as under section 3/4 of the Prohibition (Enforcement of Hudood) Ordinance, 1979) by Sessions Judge (East) Karachi. The bail application made on his behalf was rejected earlier by learned Sessions Judge (East) Karachi, vide order dated 12-2-1992.
2. On 18-2-1990 the applicant, an Afghan national was intercepted at Terminal No,III, Karachi Airport while leaving for United States of America. The baggage carried by the applicant was searched which led to recovery of heroin soaked cardboards. Consequently the applicant was arrested and a case under section 156(1)(8) of the Customs Act, 1969, was registered against him and after usual investigation the applicant and others were sent up to stand trial for the said offence in the Court of Special Judge (Customs and Taxation) Karachi. During the course of investigation of the above case the Pakistan Narcotics Control Board, commonly known as P.N.C.B. Gulshan-e-Iqbal, Karachi registered a separate case against the applicant and others under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, on 30-12-1990 and after completing the investigation challaned the applicant to face trial for the said offence, which case is now pending in the Court of Sessions Judge (East) Karachi. Besides framing of charge no progress was, however, made in this case and consequently the applicant made an application for bail under third proviso to subsection (1) of section 497, Cr.P.C. Mainly on the ground of statutory delay, which was, however, dismissed by Sessions Judge (East) Karachi.
3. I have heard Mr. Rana M. Shamim, learned counsel for applicant and Mr. Shoukat H. Zubedi, learned AA-G. For State. The latter has raised no objection to the grant of bail to applicant on the ground of statutory delay.
4. Admittedly the applicant is in continuous detention since 30-12-1990 when the case under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, was registered against him. The offence with which the applicant is charged is not punishable with death. The case has not been concluded up to this time and the perusal of the record makes it clear that the delay in disposal of the case did not occur by an act or omission of the applicant or any other person acting on his behalf.
5. Inordinate delay in disposal of a case amounting to an abuse of the process of law, was considered as a ground for allowing bail to the accused even in a murder case, but this exercise was controlled by the discretion of the Court concerned. The third proviso to section 497 of the Code of Criminal Procedure, 1898, which was added by the Criminal Procedure (Second Amendment) Ordinance, 1979, made the ground of delay certain and the accused were extended concession of bail as of right, if the requirements of this proviso were satisfied. The case of Nazir Hussain v. Ziaul Haque, reported in 1983 SCMR 72, is relevant in this behalf. This concession, however, did not achieve the desired result of speedy justice and instead the habitual offenders, who were benefited by this proviso played havoc in the society. In order to meet this exigency the legislature qualified this proviso with the fourth one, which was added in the year 1983 in the following words:-- ' Provided further that the provisions of the third proviso 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."
6. The Legislature has, therefore, denied the concession of bail on the ground of delay to the following persons:--
(i) a previously convicted offender;
(ii) a person who, in the opinion of the Court is a hardened, desperate or dangerous criminal.
7. While examining the effect of fourth proviso to subsection (1) of section 497, Cr.P.C. In the case of Jumo v. The State reported in 1989 P Cr. L J 1235, this Court observed as follows:- "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 a desperate and dangerous criminal 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."
8. This view was reiterated by the Supreme Court in the case of Moundar and others v. The State reported in PLD 1990 SC 934, wherein following observations were made:-- "It is quite plain that the normal rule stipulated in the Third proviso to section 497 was that an under-trial prisoner shall be released after expiry of the respective period, without the trial concluding. The Fourth proviso is in substance an exception to the aforesaid general rule contained in the third proviso. Before the Court applies the exceptional provisions of the Fourth proviso, it has to form an opinion that the accused was a previous convict or a criminal of one of the categories described therein. The words are "in the opinion of the Court" Such opinion cannot be obviously subjective but must be based upon materials placed before the Court, reasonably supporting the conclusion that the person concerned is a criminal of the classes described."
9. Applying the above rule laid down by the Supreme Court to the facts of present case it appears to me that there was no material on record which could legitimately provide reasonable grounds to hold even tentatively that the applicant is a dangerous, desperate or a hardened criminal.
Nothing adverse was found against the applicant from the report received from Central Prison Karachi, where he is presently lodged. The report received from Mehmood Beg, Inspector P.N.C.B.
Which simply discloses that the applicant is a hardened, desperate and dangerous criminal because he had tried to smuggle huge quantity of heroin, seems to have weighed considerably with the learned Sessions Judge in refusing bail to applicant. There are, however, several factors to be considered in assessing the practicability of such an approach. The mere fact that one other case arising out of the same incident was instituted against the applicant is not enough to come to an adverse conclusion against him in respect of his character and this is what the Supreme Court had observed in the case of Moundar and others cited above by stating that mere factum of registration of cases was not sufficient for the purpose of requisite opinion.
10. The effect of third proviso to subsection (1) of section 497, Cr.P.C. Was also considered by this Court in the case of Miskeen Khan v. The State reported in 1990 P Cr. L J 60, wherein it was held:-- "Inordinate delay in disposal of a case amounting to abuse of the process of law, was considered as a ground for allowing bail to the accused even in a murder case, but this exercise was controlled by the discretion of the Court concerned. The third proviso to section 497, Cr.P.C. Made the ground of delay certain and the accused were extended concession of bail as of right, if the requirements of this proviso were satisfied. The case of Nazir Hussain v. Ziaul Haq, reported in 1983 SCMR 72, is relevant in this behalf. In this view of the matter the applicant who is in continuous detention of more than one year is entitled to the grant of bail as of right and not as a matter of grace. The only fact that he was found in possession of huge quantity of powder of heroin should not come in his way when otherwise he fulfils the requirements prescribed by law. Where the legislature in its wisdom thought it proper to lay down certain conditions wherein the discretion may be exercised and those conditions are satisfied, it goes without saying that the Courts have to exercise their discretion in accordance with the will of legislature. Accordingly bail is granted to applicant in the. Sum of Rs,5,00,000 (Rupees five lac) with two sureties in the sum of Rs,2,50,000 (Rupees two lac fifty thousand) each with P.R. Bond in the like amount to the satisfaction of learned Sessions Judge (Central) Karachi."
11. This question was further examined by a learned Judge of Peshawar High Court in the case of Sultan Pervaiz v. The State reported in PLD 1991 Pesh.
174. I cannot do better than quoting the observations of my learned brother in extenso:-- "Let it be borne in mind that in incorporating third proviso in 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.
' For to deprive an accused person of a right conferred on him under the law in such 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."
12. The prosecution has also not been able to find out the actual quantity of powder of heroin recovered from soaked pieces of hard board weighing 6 Kgs. The applicant who was arrested for attempting to smuggle these pieces of hard board was granted bail by learned Special Judge mainly on the ground of statutory delay vide order dated 23-12-1991, which plea was, however, rejected by learned Sessions Judge (East) Karachi, for the reasons which are not tenable in law.
13. It may be added that during the pendency of this bail application the applicant has filed an application under section 561-A, Cr.P.C. Seeking the quashment of the proceedings, out of which this bail application has arisen and a learned Single Judge of this Court has stayed the proceedings with the following order:- "The contention of the learned counsel is that F.I.R. Is in violation of Article 13 of the Constitution of Islamic Republic of Pakistan. The petition is already admitted for regular hearing. Prima facie the petitioner has made out a good case for staying the proceedings pending before the Sessions Judge. I, therefore, stay the proceedings in Sessions Case No,30 of 1991 pending in the Court of District and Sessions Judge, Karachi, East. The application (MA. No,276 of 1992) is accordingly allowed."
14. Thus, there is no likelihood of the disposal of this case in near future. All these factors when combined together make out a case for bail under third proviso to subsection (1) of section 497, Cr.P.C. The applicant is, therefore, allowed bail in the sum of Rs,2,00,000 (Rs, two lacs) with two sureties of Rs,1,00,000 each and P.R. Bond in the like amount to the satisfaction of the trial Court.
15. Before I part with this order I would like to observe that the learned Sessions Judge has gone wrong in refusing bail to applicant in disregard of the consistent view taken by this Court and the Supreme Court. I am surprised to find an experienced Sessions Judge refusing bail to the applicant on the grounds which are not tenable in law and in all seriousness stating for his view something, which in the words of Raza Ahmad Khan, J. Expressed in the case of Sultan Pervaiz v. The State reported in PLD 1991 Pesh. 174, "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".
16. By a short order, dated 10-3-1992, I had allowed bail to applicant and these are reasons for the said order.