1. ' Applicants Khuda Bux, Dhani Bux and Usman are facing trial in a case registered against them through F.I.R. No, 174 of 1993 at Police Station Gizri Karachi (South), on 14-11-1993. Rizwan Jaffari a resident of Defence Housing Society, sent a letter by post to the police which was incorporated as F.I.R. Rizwan Jaffari had disclosed that he woke up on gun reports at 2-30 a.m. And found 4 armed persons inside his bungalow. His drivercum-cook Ghulam Hussain was crying and he was being forced by the assailants to lead them to other inmates of the house. The assailants who had forced their entry in the house after breaking open the gate of the house, robbed the household articles comprising gold ornaments, V.C.R. Watches cash of Rs,23,000 and Dollars 1910. The informant also stated that Chowkidar of his Bungalow had been killed by the assailants when he (the Chowkidar) had resisted their entry. The assailants had remained inside the house of the complainant for more than 1-1/2 hours before they collected the looted property and left.
2. ' Police arrested the present applicants after about one month of the incident and challaned them to stand the trial in this case.
3. ' It appears that the applicants were arrested in the month of December, 1993 when they were found to be involved in many other similar incidents.
4. ' The main contention of the learned counsel for the applicants is that the applicants have remained in jail beyond period of 2 years while the trial against them has not concluded and that therefore, they are entitled to be released on bail on the ground of statutory delay as provided by 3rd proviso to section 497(1), Cr.P.C. The learned counsel appearing for the State, stated that the applicants are not responsible for the delay in the conclusion of the trial therefore, they are of course entitled to be released on bail but because the 4th proviso to section 497(1), Cr.P.C. Is attracted in this case the applicants being desperate, dangerous and hardened criminals*, the right of bail on the ground of statutory delay could not be extended to them. Learned State Counsel has relied on a statement signed by Mr. Muhammad Shafi Rind, Inspector C.I.A., Saddar Karachi, who had appeared before the Court with this statement in place of Mukhtiar Ahmed Baig, Investigating Officer of this case, as Mr. Mukhtiar Ahmed Baig, was on Ex-Pakistan leave. Mr. Muhammad Shafi Rind in his statement stated that the applicants were involved in 15 cases of similar heinous crimes which were pending in different Courts, they were habitual criminals and also desperate, dangerous and hardened. The learned State Counsel basing his argument on the strength of the statement of the Police Officer opposed the grant of bail to the applicants.
5. ' On considering the arguments advanced before me and also after perusing the impugned order and other relevant record, I have come to the conclusion that the applicants are entitled to be released on bail.
6. ' The learned counsel for the applicants have placed on record copies of the case diaries of the trial Court showing that charge against the applicants was framed in the month of March, 1996, and they were not responsible in any manner for the delay in the conclusion of the trial. The learned counsel for the applicants have also placed on record 13 bail orders in different cases, in which they have been released on bail. These orders show that the applicants were ordered to be released in these cases mainly on the ground that the police had failed to get them identified through the P.Ws. In identification tests, and in some cases the bails were granted to them on the ground of statutory delay.
7. The main ground urged by the learned counsel for the applicants is the statutory delay in the conclusion of the trial. I have, therefore, examined the case from that angle. Admittedly applicants are in custody for more than 2 years while they are not found responsible for delay in the conclusion of the trial against them. Therefore, they are obviously entitled to be released on bail, but the only ground on which the concession of bail to them could be withheld, is the provision of 4th proviso, to section 497(1), Cr.P.C. Which is reproduced hereunder for convenience sake:-- "497(1), Cr.P.C.--- ............
8. ' 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."
9. The first point for applicant of 4th proviso appears to be the previous conviction. In this case the prosecution has not pleaded that any of the applicants is a previous convict while the counsel for applicants have claimed that none of the applicants is a previous convict. The next point for the purpose of determination of the application of this proviso is "whether the applicants are hardened, desperate or dangerous criminals", and lastly "whether they are involved in terrorism". Admittedly there is no charge of terrorism against the applicants. Therefore, the only question remains to be examined is whether the applicants could be termed as "hardened, dangerous and desperate criminals".
10. ' The 4th proviso to section 497(1), Cr.P.C., provides that the Court will refuse bail to the applicants when it forms an opinion to the effect that applicants are hardened, dangerous or desperate criminals. This opinion, in respect of the above characteristics of the accused is to be formed on the material before the Court. Consequently the material which was available before the Court was examined. It comprises of the statement by a Police Officer who is not the Investigating Officer, but an officer holding charge on his behalf who has stated that the applicants are desperate, dangerous and hardened criminals. In addition to that the learned State Counsel invited the attention of the Court to take note of 13 other cases in which the applicants are involved but have been granted bail, and stated that since the applicants are involved in similar incidents, therefore, it can be said that they are habitual offenders and habitually commit robberies, hence they may be bracketed as desperate, dangerous and hardened criminals.
11. ' No doubt, applicants appear to be involved in many similar cases but in none of these cases they were found so desperate, dangerous and hardened criminals that their bail should have been withheld. On the contrary in many of the cases the bails were allowed to them on the ground of statutory delay taking use of the 3rd proviso to section 497(1), Cr.P.C. Thereby implied meaning that provisions of 4th proviso to section 497(1), Cr.P.C. Was not found applicable to their cases. The only other material is the statement of a Police Officer who has filed the same on behalf of another Police Officer who was the actual Investigating Officer. Therefore, this could not equate with the opinion of the actual Investigating Officer, even though I have reservations if an opinion of the Investigating Officer is worth consideration for holding a person to be a desperate, dangerous and hardened criminal.
12. In the case of Moundar and others v. The State PLD 1990 SC 934 our Supreme Court has defined in detail the words "desperate, dangerous and hardened" and relying on the case of Muhammad Hanif v. The State PLD 1986 Kar. 437 had laid a principle that it had to be derived from the nature of the offence with which the applicants are charged after assessing evidence against them, tentatively, whether they could be termed as "desperate, dangerous and hardened criminals". In Moundar's case bail was granted to the applicants after considering that no specific role was assigned to the accused and therefore, it was held that the Court below was not justified in holding that the accused were dangerous persons. Therefore, in this case also, judging it on the same principle that specifically they have not been assigned their respective role in robbing the property, and committing the murder, but they are generally charged with the offence. The involvement of the applicants in other cases, in absence of material that they are desperate, dangerous and hardened criminals, does not appear to me such that the applicants should be deprived of their liberty of being released on bail which they have earned on account of delay in their trial. Under these circumstances I find that in absence of the independent material to hold the applicants to be desperate, dangerous and hardened criminals and in absence of the specific role against each of them, they could not be held to be desperate, dangerous and hardened criminals so as to deprive them of their right of bail earned by them on the ground of statutory delay in disposal of the case.
13. ' Consequently I find that the applicants are entitled to be released on bail. This application is, therefore, granted. Applicants are ordered to be released on bail on their furnishing two sureties by each of them each surety in the sum of Rs,1,00,000 (Rs, one lac) and P.R. Bond in the like amount to the satisfaction of the trial Court.