1. ' The applicant under section 497(5), Cr.P.C. Has applied for cancellation of to respondent No,1 on 12-11-1997, by learned Sessions Judge/Special Judge, Karachi, South.
2. ' The facts of the prosecution case, in brief, are that on 27-5-1997 at about 6-30 a.m. Complainant Muhammad Ali and his maternal-uncle Imam Bux, after selling the milk were returning in a vehicle and when they reached near Chakiwara, opposite Mirza Adam Tea Company, Bus Stop, four boys duly armed with weapons tried to stop the vehicle. Imam Bux, who was driving said vehicle, did not stop it. Thereupon, one of those culprits fired a shot which hit Imam. Bux, who died on the spot. The vehicle stopped after violently striking the footpath. All culprits succeeded in running away.
3. ' The respondent No,1 was in custody since 7-8-1995 and on 12-11-1997 bail was granted to him on the ground of statutory delay.
4. ' Mr. S. Mahmood Alam Rizvi, learned counsel for the applicant contends that alleged firing by the respondent upon the deceased was by itself an act of terrorism, as such, the respondent should not have been granted bail by the trial Court. Learned counsel also argued that S.H.O., Chakiwara in his report had stated that the respondent was hardened, desperate or dangerous criminal and was involved in four criminal cases viz. F.I.Rs, Nos.45 .Of 1995, 132 of 1995, 160 of 1995 and 194 of 1995 of said police station.
5. ' As against above, Mr. Sarfraz Khan Tanoli, learned counsel for the respondent submitted that the respondent in Case No,45 of 1995 was already acquitted by trial Court and the report of S.H.O. To that effect was wrong. He also submitted that in the cases registered on the basis of F.I.Rs, Nos.160 of 1995 and 190 of 1995 the respondent was already released on bail by the Court. He also pointed out that the Superintendent of Youthful Offenders, Industrial School, Karachi, by a letter, dated 17-9- 1997, had informed the trial Court that,' during the period of confinement of the respondent in jail his conduct was satisfactory.
6. 4th proviso of subsection (1) of section 497, Cr.P.C. Controls 3rd proviso of said section. According to 3rd proviso, an under trial prisoner as a matter of right is entitled to bail if the trial is not concluded within the period prescribed in said proviso. In the instant case, admittedly the trial was not concluded within the prescribed time and for the delay the respondent was not responsible. For the applicability of the 4th proviso, it is essential that the accused in the opinion of the Court shall be hardened, desperate or dangerous criminal. In this case the trial Court, after having taken into consideration all the circumstances, reached the conclusion that the respondent was not a hardened, desperate or dangerous criminal. It is the opinion of the Court that matters and not the report of a Police Officer. Under the circumstances, we are of the view that the bail was rightly granted to the respondent by the trial Court. Accordingly, the application is dismissed and the respondent would continue to remain on bail as before.
7. Bail not cancelled.