SAIDUZZAMAN SJDDIQUI, J.- The petitioner is seeking leave to appeal against the judgment of a Learned Judge in the Chambers of High Court of Sind dated 2-5-1995 whereby the Learned Judge declined to enlarge the petitioner on bail under 3rd proviso to section 497. Subsection (1). Cr.P.C, on the ground that he is a hardened, desperate and dangerous criminal.
2. We had issued notice in this case to Advocate-General. Sind, on 1-8- 1995 and after hearing the .Learned counsel for the petitioner and State convened this petition into appeal and the same is disposed of as follows.
3. The petitioner appellant was arrested on 9-9-1993 in a case under Article 3 of Prohibition (Enforcement of Hadd) Order. 1979 for allegedly carry ing heroin weighing 25 kilograms in a donkey; can. He moved an application for grant of bail on the ground of delay in conclusion of his trial and for remaining continuously in jail for a period of more than one year from the date of his arrest, before the trial Court which was rejected on 22-9-1994. He then approached the High Court but bail was declined by a learn Judge in Chamber as aforesaid.
4. It is not disputed before us that the delay in conclusion of the trial is not attributed to the appellant in any manner. The Learned Judge in Chambers, however, declined to grant bail to the appellant under 3rd proviso to subsection (1) of section 497 Cr.P.C, on the consideration that by transporting heroin during day the, the appellant has proved himself to be a hardened, desperate and dangerous criminal and therefore, in view of the 4th proviso to section 497< 1). Cr.P.C, he was not entitled to the grant of bail. The Learned Judge also took into consideration that since the arrest of the appellant the punishment for carry ing heroin has been enhanced to death by an amendment which came into effect on 7-8-1994.
5. The Learned counsel for the appellant contended that there is no material on record to show that the appellant w as ever involved in any criminal case or there are any criminal proceedings pending against him. It is further contended by the Learned counsel for the appellant that there is nothing on record to show that the appellant had acted in a manner w wich could lead to the conclusion that he is a hardened, desperate and dangerous criminal as held by the Learned Judge in Chambers. It is lastly, contended by the Learned counsel for the appellant that although the appellant was arrested on 9-9-1993 and now- almost a period of two years will complete within next few days. Out of 11 witnesses in the case only 2 have been examined by the Court so far.
6. The right of an accused to be enlarged on bail on account of delay in conclusion of trial is a statutory right which can only be defeated on the ground that the reasons for delay in conclusion of trial are attributable either to the accused or to any other person acting on his behalf. He can also be refused bail where the trial is not concluded within the prescribed period, if he is a previously convicted offender for an offence punishable with death or imprisonment for life or he is in the opinion of the Court, a hardened, desperate or dangerous criminal or involved in terrorism. It is, Therefore, quite clear that under the 4th proviso to section 497(1). Cr.P.C., bail can be refused to an accused in spite of the fact that his trial could not be completed within the period prescribed under section 497. Cr.P.C., only if the accused is either a previous convict for an offence which is punishable with death or imprisonment for life or he found by the Court to be a person who is hardened, desperate or dangerous criminal or he is involved in any at of terrorism. It is not disputed before us that the appellant is neither a previous convict within the meanings of proviso to section 497 (1). Cr.P.C, nor he is involved in any at of terrorism. However, the Learned judge has found him to be a hardened, desperate and dangerous criminal and therefore, he was refused bail in the case.
In the case Muhammad Hanif v. The Slate (PLD 1986 Karachi 437) which was approved by this Court in the case Moundar etc., v. The State (PLD 1990 SC 934) Sajjad Ali Shah. J. (as he then was) observed that the findings by the Court with regard to an accused being hardened, desperate or dangerous criminal can be given .With reference to the facts of bail application or by reference to other extraneous matters which may be brought to the notice of the Court. In the case, the accused appellant was found to be a hardened, desperate and dangerous criminal on account of pendency of number of criminal cases against him and it was further found in that case that he had raped his own sister's daughter and subjected her to persecution and on these facts he was declined bail under 4th proviso to section 497 111. Cr.P.C. In the case Jalal v. Allahyar (1993 SCMR 525) leave was granted by this Court against the order of High Court admitting respondents in the case to bail which was earlier declined by the trial Court on the ground that the respondents were hardened, desperate and dangerous criminals. In that case a double murder was committed in a cruel manner. This Court final dismissed this appeal and upheld the order of the High Court granting bail to the accused in the case under 3rd proviso to section 497(1). Cr.P.C, as the fact on record did not justify the conclusion that respondents in that case were hardened, desperate or dangerous criminal. Although it was a double murder case but the Learned Judge observed that the accused had fired only one shot and the acts attributed to the accused in the F.I.R, did not constitute a behaviour to indicate that the accused respondents were persons of criminal nature or they were involved in any other crime.
7. In the case before us it is conceded that apart from the case in question, the appellant is neither involved in any other case nor he has ever been prosecuted in any case earlier. Mere fact that at the the of commission of the offence the accused was allegedly found transporting heroin during day the on a donkey can in our opinion, is not sufficient to hold that the appellant w as a desperate, hardened or dangerous criminal. No material was brought before the learned Judge in Chambers or before us in support of any other criminal activity of the appellant or any other criminal conduct on the pan of the appellant which could lead to the conclusion that he is a person who could fall within the category of hardened, desperate or dangerous criminals. The maximum punishment prescribed for the offence is life imprisonment and the appellant has remained in custody for a continuous period for more than 1 year and there is no possibility of the conclusion of the trial in the near future as out of II witnesses cited in the F.I.R, only 2 have so far been examined by the Court.
We. Accordingly allow the appeal and admit the appellant to bail on the ground of delay in conclusion of his trial. The appellant is admitted to bail in the sum of rupees two lacs with on surety and P.R. In the like amount to the satisfaction of the trial Court.