1. ' The applicant is facing trial in the Court of IIIrd Additional Sessions Judge, Central Karachi in Crime No,473 of 1994 of P.S. Khawaja Ajmer Nagri for an offence punishable under sections 353 and 324, P.P.C. As amended.
2. ' Allegation against the applicant is that on 2-12-1994 at about 11 a.m. While S.H.O. Haji Muhammad Anwer alongwith his staff was on patrol duty present applicant alongwith Tariq Mehmood and Aslam fired at them with the intention to kill. Police party also fired in self-defence and apprehended present applicant in an injured condition alongwith Tariq Mehmood, while co- accused Muhammad Aslam managed to escape away. One 30 bore TT pistol loaded with magazine having two live cartridges, was secured from the possession of applicant.
3. ' A bail application previous to this was also filed before this Court which was dismissed on merits by order dated 244-1995. Thereafter, the applicant moved fresh bail application before the trial Court on the point of statutory delay but the same was rejected vide order dated 8-1-1996. Hence this application.
4. ' Heard the learned counsel for the applicant as well as for the State.
5. ' Applicant has been arrested on 8-12-1994 for offences punishable under sections 353 and 324, P.P.C. For which maximum punishment is not more than ten years. Order of the trial Court reveals that due to the disturbed circumstances of Karachi City no witness has been examined so far, as such, the applicant in no way can be made responsible for causing delay in trial of the case.
6. ' The 3rd proviso to section 497(1), Cr.P.C. Gives statutory right to the accused to be released on bail but for the reasons given in fourth proviso para. B of the proviso. 3rd proviso to section 497(1), Cr.P.C. Reads as follows:-- "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 or in exercise of any right or privilege under any law for the time being in force, direct that any person shall be released on bail--
(a) who, being accused of any 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 for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or involved in terrorism."
7. ' The trial Court also called for the report from Superintendent, Central Prison, Karachi regarding antecedents of the applicant and as per report present applicant is involved in one case of 13-D, Arms Ordinance, apart from the present one, but this case is in respect of recovery of arms from the applicant in the present case. As regard conduct of the applicant the report of Superintendent, Central Prison, Karachi is good. Ms. Nasreen counsel appearing for A.-G for State also states that the applicant is neither a previous convict nor is involved in any case except those mentioned above.
8. Whether an accused is hardened, dangerous and desperate criminal can be spelt out from his previous record or by the manner in which the offence is committed. There is nothing in the police record to show that the applicant is a previous convict and the F.I.R. Does not indicate that he has committed such an act for which he can be labelled as hardened, dangerous and desperate criminal. It is a case of ineffective firing, no one from the Police party received injury rather the applicant himself received injury.
9. ' In case of Zahid Hussain Shah v. The State PLD 1995 SC 49 it has been held as under:-- "The fight of an accused to be enlarged on bail under the 3rd proviso to section 497(1), Cr.P.C. Is a statutory right which cannot be denied under the discretionary power of the Court to grant bail.
10. The right of an accused to get bail under the 3rd proviso of section 497(1), Cr.P.C. Is not left to the discretion of the Court but is controlled by that provision. The bail under the 3rd proviso (ibid) can be refused to an accused by the Court only the ground that the delay in the conclusion of the trial had occasioned on account of any act or omission of the accused or any other person setting in his behalf. The bail under the 3rd proviso ibid can also be refused by the Court if the case of the accused fell under the 4th proviso to section 497(1), Cr. P.C. In all other cases the Court must grant bail."
11. ' In case of Nazeer Hussain v Ziaul Hag and others 1983 SCM R 72 the word "shall" has been explained to highlight and emphasise the mandatory provision for the release of the accused who has remained in jail beyond statutory period, and his case is not hit by the bar contained in 4th proviso to section 497(1), Cr . P. C .
12. In view of the above discussion I am of the view that the applicant has remained in jail for more than one year for the offences which are not punishable with death and also that he is neither a hardened, dangerous and desperate criminal nor involved in any act of terrorism. As such, he is entitled to be released on bail. He be admitted to bail on his furnishing one surety in the sum of Rs,1,00,000 and P.R. In the like amount to the satisfaction of the trial Court.
13. ' These are the detailed reasons of the order already announced.