1. ' This criminal miscellaneous application has been filed on behalf of applicant Muhammad Uris for cancellation of bail granted to respondents Nos.1 and 2 on 8-8-1998 and to respondents Nos.3 and 4 on 27-7-1998 by IVth Additional Sessions Judge, Larkana.
2. The learned counsel for the applicant has, at the very out-set, submitted that the bail has been allowed on the statutory ground of delay as according to impugned order, the respondents had remained in custody for a period of more than one year. The learned counsel has contended that F.I.R. Was registered for offence punishable under section 364-A, P.P.C. Besides the other sections and the offence under section 364-A, P.P.C. Is punishable with death or imprisonment fOr life and, therefore, the respondents/accused could get benefit of third proviso only if they had remained in custody for two years and their trial was not concluded. As such the impugned orders is not legal and proper and liable to be set aside.
3. ' The second contention raised by the learned counsel for the applicant is that the respondents were not entitled to bail in view of fourth proviso to section 497(1), Cr.P.C. As the respondents were hardened and dangerous criminals. In support of his submissions, he urged that for holding an accused as hardened and dangerous criminal, the Court has to look into the material placed before it and the manner in which the offence is committed and it is not necessary that a person can be declared as dangerous only if he is involved in other cases. The learned counsel for the applicant has read the F.I.R. And 164, Cr.P.C. Statement of the abductee/prosecutrix. He has placed the reliance on the following case-law:-- ' Muhammad Hanif v. State PLD 1986 Kar. 437 and (ii) Abdul Halim v. State PLD 1986 Pesh.
4. 92.
5. As against that the learned counsel for the respondents have argued that of course respondents were challenged to face the trial under section 364-A, P.P.C. But on commencement of trial, the Court framed charge against the accused for offences punishable under sections 366-A, 366-B, 368, P.P.C. And sections 10 and.15, Offence of Zina (Enforcement of Hudood) Ordinance. None of the above offences is punishable with death and as such the rights were entitled to the grant of bail on completion of one year in jail if no delay is occasioned by or attributed to the accused. In the present case there is no such allegation. They have further argued that as far as forming opinion about an accused to be dangerous or desperate criminal, it depends on the other circumstances and not solely on the case in which he or they are challaned as such allegations are yet to be proved. They have lastly contended that even on the factual aspect, the respondents cannot be termed as such. They have placed reliance on the case of Zahid Hussain Shah v. State reported in PLD 1995 SC 49.
6. ' At this moment Mr. Muhammad Afzal Soomro, learned counsel for applicant in rebuttal submitted that no doubt the charge was not framed for offence under section 364-A, P.P.C. Which was not proper for trial Court and the said Court has wrongly excluded section 364-A, P.P.C. From the charge. He contended that framing of a charge under some other section carrying lesser punishment does not give the right to the respondents to the grant of bail. He has relied on the case reported as Abdul Rauf v. State and 2 others 1998 SCMR 1771.
7. ' The learned Additional Advocate-General does not support the order passed by the trial Court for two reasons; firstly that section 34, P.P.C. Is applicable in the present case and secondly that there are serious allegations against the respondents.
8. ' I have considered the arguments advanced by the learned counsel for the parties. It is admitted position that the charge-sheet was submitted for an offence punishable under section 364-A, P.P.C. Besides the other sections stated in the F.I.R. According to me the point which requires consideration is whether the trial Court can frame the charge under any other section or delete the section mentioned in the F.I.R. Or charge-sheet. I am of the view that in cases tribal by Sessions Court, the trial Court has to frame the charge after examining the material available with the Court and in support of this view section 265-D, Cr.P.C. Is clear which reads as under:-- "265-D If, after perusing the police report or, as the case may be, the complaint, and all other documents and statements filed by the prosecution, the Court is of opinion that there is ground for proceeding with the trial of the accused it shall frame in writing a charge against the accused."
9. ' 1 have gone through the case of Abdul Rauf v. The State and 2 others 1998 SCMR 1771 relied upon by the learned counsel for the applicant wherein the charge-sneer was submitted under section 302, P.P.C. And later the charge was amended on the application of the party to section 308, P.P.C.
10. This authority does not deal with the question of grant or refusal of bail. In that case one of the legal heir of the deceased woman had questioned such amendment and the matter went upto the level of Honourable Supreme Court. On a query from the Court, learned counsel for applicant frankly admitted that the complainant or his counsel did. Not file any application before the trial Court for framing the charge under section 364-A, P.P.C. The charge was framed on 4-4-1998 and respondents are granted bail on 27-7-1998 and 8-8-1998 after more than 3 months. I do not agree with the submission of the learned counsel on this point because there is also another aspect of the case which requires consideration that if during the course of trial, the Court feels that the accused have committed an offence punishable under section 364-A, P.P.C. Then the trial Court cannot convict them until and unless the charge is amended and the accused are called upon to answer the said charge. No doubt if the Court find any of the accused guilty of an offence mentioned in the charge or for the offence carrying lesser punishment, then no amendment of charge is required and the Court straightaway can convict the accused on the basis of evidence recorded during the trial. Therefore, if the applicant feels that the respondents are not entitled to the grant of bail on statutory delay on account of commission of offence punishable under section 364-A, P.P.C., then he should have asked the trial Court to amend the charge accordingly and if his prayer was accepted, then automatically the bail granted to the respondents on the ground of statutory delay could be recalled on moving such application. As the present position stands, the accused are charged for an offence not punishable with death. Therefore, the respondents are entitled to the grant of bail on expiry of one year if delay in conclusion of the trial is not attributed to them which allegation is not made in this case as stated above.
11. ' Moreover, if the above contention regarding deletion of section 364-A, P.P.C. From the charge is accepted, the ultimate effect would be setting aside the charge framed by the trial Court without notice to the accused which cannot he done in the proceedings of present nature.
12. ' Adverting to the second contention of the learned counsel there is no allegation in the F.I.R. Or in 164, Cr.P.C. Statement that two or more persons indulged into the act of Zina in order to show that it was a gang rape involving death sentence. As far as forming an opinion that accused was dangerous or desperate criminal, prima facie there appears no material. There is allegation of abduction, wrongful confinement and commission of Zina by one person who later on claimed to have married with the prosecutrix and at the most it can be a case of forced Nikah. Therefore, on the basis of evidence available with the prosecution, it cannot be held that the respondents are not entitled to the grant of bail under fourth proviso to section 497(1), Cr.P.C. All these points are yet to be determined at the trial which has just started with framing of the charge.
13. ' So far the case-law cited by the learned counsel for the applicant, it may be observed that in the first case PLD 1986 Kar. 437, it was the fourth . Application for bail preferred by the accused in the High Court and previously his application on the ground of statutory delay was rejected. Another reason for declining bail was that three more cases were pending against the accused and the most sensational part of the story was that accused raped daughters of his own sister and subjected them to prostitution. As such the said case was held to fall under the purview of fourth proviso to section 497(1), Cr.P.C. In the present case, as observed hereinabove, there are no circumstances justifying applicability of the fourth proviso.
14. ' The second case PLD 1986 Pesh. 92 was read carefully and it goes against the point canvassed by the learned counsel in support of his view point.
15. ' I am also not impressed by the arguments of the learned Additional Advocate-General.
16. Applicability of section 34, P.P.C. Or seriousness of allegations have no relevance in the case as the bail has not been granted on merits but on the ground of statutory delay in-conclusion of the trial.
17. In view of the above discussion, I am of the view that the ground of statutory delay is to be taken into consideration on the basis of F.I.R. And the challah till charge is not framed and when trial Court has framed the charge in exercise of powers vested in it by section 265-D, Cr.P.C., further proceedings will take place in accordance with the nature of the charge so framed. At this stage this Court cannot hold that the trial Court has wrongly framed the charge.
18. ' As a result of the above discussion I am of the firm opinion that this , criminal miscellaneous application merits no consideration and is dismissed. The c order passed by the trial Court is maintained.
19. ' However, applicant/complainant will be at liberty to adopt the proper procedure and file proper application for amendment of the charge before the trial Court or other forum so advised and in case he succeeds to get the charge framed under section 364-A, P.P.C., the law will have to take its own course in the changed situation.
20. ' This Criminal Miscellaneous Application No,75 of 1998 is disposed of accordingly.