SAIDUZZAMAN SIDDIQUI, J.---The above criminal appeal with the leave of this Court is directed against the order of a learned Division Bench of Lahore High Court, Lahore dated 20-8-1996.
2. The appellants alongwith five others were arrested in a criminal case F.I.R., 139, dated 15-6-1993 registered under section 302/324/148/149, P.P.C. Appellant Umer Daraz was arrested on 19-7-1993 while his co-appellant Ghaffar was arrested on 25-7-1993. Challan in the case was originally submitted against all the accused persons before Sessions Judge, Jhang, on 27-7-1994. Two co--- accused in the case namely, Muzaffar and Muhammad Shafi were admitted to bail by the Sessions Judge, Jhang, on 30-8-1994 while the other 3 co-accused namely, Shahadat, Dilmeer and Nasir were granted bail by the High Court of Lahore on 10-8-1994. The trial before the Sessions Judge, Jhang, however, could not proceed as the complainant in the case filed a writ petition before the High Court of Lahore Writ Petition No.2092/95 seeking declaration that the case was triable by the Special Court (Suppression of Terrorist Activities), hereinafter to be referred as 'the Special Court' only. This writ petition was ultimately withdrawn from the High Court on 23-8-1995. After withdrawal of writ petition from the High Court the case was taken up by the Additional Sessions Judge, Jhang, but once again the complainant moved for transfer of the case to the Special Court. The Additional Sessions Judge, by order dated 1-10-1995 accepted the prayer for transfer of case to the Special Court and accordingly, directed that the file may be placed before the Sessions Judge, Jhang, for appropriate orders. The Sessions Judge, on 4-10-1995 sent the case to the Special Court No.V, Faisalabad, and directed the parties to appear before Special Court on 5-10-1995. The order of Additional Sessions Judge, dated 1-10-1995 was challenged by the appellants before the High Court in a writ petition which was dismissed on 18-10-1995. The appellants, in the meantime, also applied for grant of bail to Sessions Judge, Jhang, who declined the same. The appellants, thereafter, approached the High Court of Lahore for grant of bail but a learned Division Bench of that Court on 5-12-1095 declined the request of appellants for grant of bail. However, while dismissing the bail application. The learned Judges directed the trial Court to decide the case within 4 months. The case was taken up by the Special Court on 3-12-1995 and Bailable Warrants were issued against the accused persons for appearance on 10-12-1995. On 10-12-1995 the bailable warrants issued by the Court were unserved on the accused and therefore, non-bailable warrants were issued against the accused for 21-12-1995. Thereafter, the case came up before the Court on 3 dates but the appellants, who were in custody, were not produced and as such no progress in the case could be made. The appellants were produced before the Special Court in custody for the first the on 29-1- 1996 for framing of formal charge. Thereafter, the case came up before the Court for framing of charge on 12-2-1996. 11-3-1996 and 8-4-1996 but no charge was framed and no reasons are discernible from the order-sheet for non-framing of charge in the case. Since the case was not concluded by the trial Court within 4 months as directed by the High Court on 5-12-1995, the appellants again moved the High Court for grant of bail, this the urging the ground of statutory delay. A learned Division Bench of High Court, however, declined to admit the appellants to bail for the following reasons:---- "4. The petitioners have applied for grant of bail to them essentially on the ground that more than to years have elapsed since their incarceration but trial of the case had not concluded.
5. Learned counsel for the parties have been heard in the matter and record perused with their assistance.
6. Both the parties have been wrangling with one another over the venue of trial. The challan in case was originally submitted before Sessions Judge, Jhang, and trial commenced but later the case was found to be one triable by the Special Court constituted under Suppression of Terrorist Activities Act, 1975. The delay in conclusion of trial was not attributable to prosecution alone and the petitioners or their co-accused had also contributed to the delay.
In this view of the matter, we are not inclined to release the petitioners on bail as effective and fatal fire-arm shots are ascribed to them."
3. Leave was granted by this Court against the order of learned High Court as following:--- "Learned counsel for the petitioners pressed the bail on the ground of statutory delay only. .
Mr. Naveed Rasool Mirza, learned Additional Advocate-General, appearing on Court notice, contended that delay in trial of case, if any, was due to the petitioners who had filed writ petition challenging the order of the Additional Sessions Judge, dated 1-10-1995. Learned Additional Advocate-General contended that the petitioners are involved in terrorist activities, as they had participated in murder of Muhammad Arif and causing of injuries to Mst. Zubaida and Muttali and hence they were not entitled to benefit of third proviso below subsection (1) of section 497 of Cr.P.C., as they were covered by fourth proviso (ibid).
In this respect learned counsel for the petitioners argued that facts of the instant case cannot be taken into consideration while considering whether the petitioners were involved in any terrorist activity. Reliance was placed on the case of Mounder and others v. The State 1988 SCM R 1113. In the cited case, only leave to appeal was granted. It has been observed in the cited case as follows:--- 'The word 'criminal' had not been defined in the Criminal Procedure Code and, therefore, needs to be construed authoritatively in order to determine whether under trial prisoner could be held to be a criminal before the determination of his guilt at the trial for purposes of bail and on what material a Court is supposed to determine the question whether he is desperate and dangerous. One view could be that such matters for purposes of bail are to be decided on a tentative basis and upon a finding that the accused is reasonably guilty of the allegations made against him. However, we have been told that there is conflict of opinion on the true interpretation of these provisions in the High Court, which needs to be resolved'.
There is need for an authoritative judgment on the point, as to, whether the acts attributed to an accused for which he is being tried can be kept in consideration while deciding his case being covered by 4th proviso below subsection (1) of section 497, Cr.P.C.
Under the circumstances, we grant leave to consider inter alia the aforesaid proposition of law. The appeal to be heard at a very early date on the present record. "
4. Leave was granted in the above appeal mainly to render an authoritative pronouncement of this Court on the legal proposition formulated in the leave granting order in the case of Mounder v.
State 1988 SCM R 1113, which has since been decided finally and the judgment is reported as Mounder v. State in PLD 1990 SC 934. The legal questions noted in the leave granting order therefore, stand answered with the final decision of Mounder's case (supra), as follows:--- "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. The word 'criminal' has not been defined. It will not be proper and indeed would be difficult to define it or give it a specific meaning.
However, it is a common word of the English language. According to the Shorter Oxford English Dictionary the word carries several meanings, including the meaning---a person accused of a crime. In the context of the provisions under construction, we feel that the word cannot be construed in the technical sense, namely, that a formal accusation must be made against the person or that he should have been adjudged guilty of a charge in a Court of law. It appears to have been used in the sense of a person who violates the law of the land. The three objectives qualifying the word 'criminal' may also be examined.
According to the same dictionary the word 'harden' has been defined to mean, inter alia, (1) to render or to make hard; to indurate, (2) to embolden, confirm, (3) to make collous or unfeeling and
(4) to make persistent or obdurate in a course of action or state of mind. The word 'hardened' has also been defined to mean 'made hard, indurated; rendered callous; hard-hearted; obdurately determined in a course'.
The same dictionary gives the meaning of the word 'dangerous', inter alia, as fraught with danger or risk; perilous, hazardous, unsafe.
These appear to be the meanings intended to be conveyed by the legislature by using the words 'hardened, desperate or dangerous criminal'. Accordingly the view taken by Sajjad Ali Shah, J., appears to be correct and the construction placed by him is in consonance with the intention of the Legislature underlying the provision in question in the context of the whole section. In the circumstances we are unable to accept the contention of Mr. Muhammad Hayat Junejo that the facts and circumstances of the prosecution case in which the accused person seeking release on bail is facing trial cannot be taken into consideration. The proposition relied upon in support of the contention to the effect that a finding in a criminal trial can only be reached upon the assessment of entire evidence produced in the Court, is inapplicable, in so far as the opinion reached by the Court for purposes of the 4th proviso has nothing to do with the findings of the Court at the trial.
Indeed the conclusions drawn for the purpose of a disposal of a bail application cannot be used to the prejudice of the accused as the same are tentative in nature. However, there is no justification for the argument that such an exercise undertaken by the Court, violates the principle that an accused person is presumed innocent until proved otherwise. In subsection (1) of section 497 the Legislature has already empowered the Court even before the commencement of the trial to make a tentative assessm ent of the evidence collected against an accused person or likely to be produced in the trial against him, in order to reach the conclusion whether there appears a reasonable ground for believing that he has been guilty of an offence punishable with death or life imprisonment or imprisonment for 10 years. The provision under consideration here is a proviso to the same subsection, and, therefore, it will be reasonable to construe it in the same manner authorizing a Court to take into consideration the evidence collected by the prosecution for purposes of determining whether the accused is a criminal of the categories prescribed therein. Of course the Court can take into consideration and indeed in most of the cases it will take into consideration other materials produced by the prosecution in order to show that the case fails within the prohibitions contained in the 4th proviso. "
5. The learned Judges of the Division Bench declined to admit the appellants to bail on the ground of statutory delay in disposal of the case for the reason that firstly, the question of jurisdiction of the Court remained unsettled as both the complainant and the appellants agitated this controversy before the High Court in writ petitions and secondly, the delay in disposal of the case was contributory and not solely attributable to prosecution.
6. In order to satisfy ourselves that the trial was not unduly delayed, we directed the A.-G., Punjab to appear personally in the case and address us. The learned Advocate-General, Punjab, in response to our notice appeared on 26-2-1997 and placed before us a notification, dated I1-12-1996 issued by the Home Department, Government of Punjab, whereunder the services of Presiding Officer of S.T.A., Courts Nos.1 to 4 were terminated and Sessions Judges of Rawalpindi, Sargodha, Gujranwala and Lahore have been constituted as Special Courts under Suppression of Terrorist Activities (Special Courts) Act, 1975. The learned Advocate-General, Punjab, further stated before us that all cases pending before S.T.A., Courts have been assigned to Sessions Judges mentioned above and undertook before us that the appellants' case will be disposed of within 2 months from today. After hearing the learned-counsel for the appellants and the learned Advocate-General, Punjab, we were of the view that as the main legal question arising in the case 'has been decided by the decision of this Court reported in PLD 1990 SC 934, and the order passed by the Division Bench declining the bail to appellants on the ground of statutory delay, was not totally unreasonable, it would be appropriate to dispose of this appeal on the basis of the undertaking offered by the learned Advocate-General, Punjab, before us in Court. We, accordingly, passed the following short order on 26-2-1997, disposing of the appeal:--- "For the reasons to be recorded later, this appeal is disposed of in terms of the undertaking given by A.-G., Punjab before us today that the trial of the appellants will be concluded within to months from today. In case the trial is not concluded as undertaken by the learned A.-G., Punjab the appellants shall be entitled to move bail application on the ground of statutory delay before the trial Court."
The above are reasons for the short order passed on 26-2-1997.