' BASHARAT AHMAD SHAIKH, J.---This appeals has been filed to partly challenge the judgment of the Shariat Court, dated 14th Janury, 1999 whereby the Revision Petitions Nos.155 of 1997 and 19 of 1998 were dismissed and Revision Petition No,128 of 1998 was partly accepted.
2. Respondents Muhammad Jehangir and Muhammad Tariq were released on bail on 30th August, 1997 by District Criminal Court on the basis of two years' confinement. Respondents Muhammad Naseer Akber and Muhammad Asif were released on the same ground on 29th October, 1997. Ashiq Hussain was likewise released on 8th December, 1997. Three revision petitions were filed against the aforesaid orders which have been disposed of together by a single judgment of the Shariat Court on 14th January, 1999. The Shariat Court has held that Muhammad Jehangir and Muhammad Tariq had not completed two years' statutory period in confinement, their bail was, therefore, cancelled.
The other two revision petitions were dismissed. The result is that Muhammad Naseer Akber, Muhammad Asif and Ashiq Hussain are on hit while bail bonds of Muhammad Jehangir and Muhammad Tariq have been cancelled. However, Muhammad Tariq has absconded. The complainant has filed this appeal to seek verdict that all the five respondents, including those whose bait, has been cancelled, are covered by the proviso relating to hardened, desperate and dangerous criminals. The proviso is as follows:--- "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."
3. The proviso reproduced above was interpreted by the Supreme Court of Pakistan in Moundar and others v. The State (PLD 1990 SC 934) and has been followed by this Court in Criminal Appeal No,2 of 1998 titled Muhammad Aziz v. The State (decided on 15-5-1998). In Moundar's case before the Supreme Court of Pakistan two different views about the connotation of the word "criminal" were referred by the counsel for the parties. Ir. Rahim Bux and others v. The State (PLD 1986 Kar.
224) Saeeduzzaman Siddiqui, J. (as he then was) expressed the view that the words "dangerous, desperate or hardened criminals" have no reference to the accusation or allegation in the FIR., or complaint in a pending -trial but refer to a person who has been found guilty and has been convicted because the word "criminal" means a person who has been convicted or adjudged to be guilty of an offence. On the other hand, Sajjad Ali Shah, J. (as he then was) in Muhammad Hanif v.
The State (PLD 1986 Kar. 437) dissented from the opinion of Saeeduzzaman Siddiqui, J. And held that the word "criminal" cannot be given a special meaning as a person already convicted of a crime for in that case, the category of previous convicts having been separately mentioned as disentitled to the privilege of release on bail on the ground of statutory delay, the words under interpretation to the effect that the person is hardened, desperate or dangerous criminal, would be rendered completely redundant and meaningless. The learned Judge expressed the view that opinion on this question can be based upon a material available in the case under trial as well as any other material which may be produced by the prosecution and to help the Court in formation of such opinion. This difference of opinion was resolved by the Supreme Court of Pakistan in the following words:-:- "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 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 Lesislature has already empowered we' 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 &fence 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 authorising a Court to take into consideration the evidence collected by the prosecution for the purposes of determining whether the accused is a criminal of the categories prescribed therein. Or 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 falls within the prohibitions contained in the 4th proviso."
4. The words 'desperate "dangerous" were defined as follows in the same judgment:--- "The meanings of the word 'desperate', inter alia, are in relation to person: driven to desperation hence reckless, violent, ready to risk or do anything.
' The word "dangerous" inter alia, means as fraught with danger or risk perilous, hazardous, unsafe."
5. The allegation against the respondents is that at about, 6-00 p.m. On 29th July, 1995 Abdul Aziz, absconding accused who is not before the Court, came on a motor boat near the house of Muhammad Hanif. He called Muhammad Hanif and asked him as to why he had stolen timber.
Muhammad Hanif replied that he had not stolen any timber bud timber had come there due to flood. Harsh words were exchanged between them but the complainant, Javed lqbal, intervened.
Abdul Aziz went back and threatened that he will see him (Muhammad Hanif) tomorrow as to how he collects timber. On the next date at 1-30 p.m. It is alleged that Abdul Aziz with his brothers Muhammad Naseer Akber, Muhammad Tariq, Muhammad Asif, Muhammad Jehangir, Muhammad Arif and one Ashiq Hussain son of Muhammad Afsar came to the same place on a motor boat.
Except Asif, others are respondents before us. It is alleged that Abdul Aziz and Naseer Akber were armed with .12 bore gun, Tariq had a double-barrel gun, while Jehangir carrying a klashnikov. The motor boat was stopped near a village. Abdul Aziz called Abdul Razzaq and asked him to come down. When Abdul Razzaq came forward, Abdul Aziz is said to have fired a bullet which hit on his chest and he fell down. Thereupon, the complainant raised hue and cry and asked them to stop firing. Meanwhile, Tariq fired a shot which hit on the forehead of Junaid. The complainant also sustained injuries. Naseer fired a bullet which hit Munaza Bi wife of Rashid. She also fell down. At the same time Jehangir and other accused persons kept on firing. Due to the said firing, Muhammad Naveed, Mst. Aziz Jan, Mst. Sandal Bi and Mst. Saeeda Bi were also injured.
6. From the contents of the First Information Report, which are supported by material appended with the challan, most of the respondents seem to be 'desperate' and 'dangerous' criminals. The absconding accused gave a warning a day before the occurrence. That he will come again and allegedly on the following day he brought other armed persons with him and on the suspicion that timber was taken away or was stolen reckless firing was carried out resulting in death of two persons and injuries on a good number of people. However, the case of all the respondents cannot be treated alike. We note that specific injuries are attributed to Muhammad Jehangir, Muhammad Tariq and Muhammad Naseer Akber but the allegation against Muhammad Asif and Ashiq Hussain is that they fired with their .12 bore guns but did not injure anybody. Therefore, the dictates of safe administration of justice require that Muhammad Aid and Ashiq Hussain may not, at the present stage, be termed as 'desperate' and 'dangerous' criminals unless some more incriminating material is brought out against them. Muhammad Tariq is a respondent but has absconded after being released on bail by the trial Court. No order is therefore, passed against him.
7. The appeal is, therefore, partly accepted and we hold that respondents Muhammad Jehangir and Muhammad Naseer Akber are desperate and dangerous criminals and they cannot be released on sail. Out of them Muhammad Naseer Akber is on bail. His bail bond is cancelled and it is ordered that he should be taken into custody and be lodged in judicial lock-up Mirpur.
8. The appeal against Muhammad Tariq shall be kept pending and will he decided when he appears before the Court after being arrested. Non-bailable warrants are issued against him.