1. ' The above-titled appeals have been directed against the order of Additional District Court of Criminal Jurisdiction Kahutta Camp Dheer Kot, dated September 28, 1999, whereby two bail applications by Muhammad Azad Khan and Muhammad Ishaq Khan were disallowed by the said Court.
2. ' Mr. Muhammad Azad Khan initially moved the trial Court for his bail on merits of the case and subsequently he moved another application for bail under amended law for delay in trial. Mr. Muhammad Ishaq also moved his bail application on the ground of statutory delay in the trial. The trial Court disposed of all the applications through the impugned order, therefore, the above titled appeals shall also stand disposed of through the following judgment.
3. ' The accused respondents are facing trial on a murder count before Additional District Court of Criminal Jurisdiction Kahutta Camp Dheer-Kot. The case is at the stage of evidence and up till now the statements of as many as five prosecution witnesses have been recorded and two prosecution witnesses Nos.6 and 7 have been given up by the prosecution.
4. ' The accused-petitioners as indicated above moved the trial Court for concession of bail on merits and on the ground of statutory delay in conclusion of the trial. The trial Court while recording the impugned order observed as the accused-petitioners were hardened, desperate and dangerous criminals, therefore, they could not be allowed bail under the provisions pertaining to delay in trial.
5. However, while recording the impugned order, the trial Court failed to record its observation on the bail application by accused petitioner Muhammad Azad Khan moved on merits of the case. The said Court rejected all the applications treating them as the bail applications under the amended law.
6. ' The learned counsel for the accused-petitioners argued that the trial Court failed to look into the matter with a judicial mind and the impugned order was recorded without due application of mind also. They contended that the cases on the basis of which the trial Court arrived at the conclusion that the accused petitioners were hardened, desperate and dangerous criminals were not properly looked into. Most of the cases referred by the trial Court were unconcluded, whereas the others were decided in favour of the accused-petitioners as they stood acquitted in those cases. It was further argued that even if it was accepted that these cases were actually there no material allegation was levelled against the accused-petitioners. Moreover, mere allegations and accusations could not be allowed to disentitle the concession of bail as they were yet to be proved guilty of the offences they are charged with. Therefore, according to the learned counsel they could not be branded or dubbed as hardened, desperate and dangerous criminals.
7. ' On the other hand, it was argued that the accused-petitioners repeatedly committed different heinous crimes and the cases registered against them were evident of the fact that they were not entitled to concession of bail under third proviso to subsection (1) of section 487, Cr.P.C. As they were hardened, desperate and dangerous criminals. It was further argued though the accused- petitioners were not the previous convicts but their case was definitely within the clutches of second half of 4th proviso to section 497, Cr.P.C. As their previous record was evident of the fact that they were hardened, desperate and dangerous criminals.
8. ' The record of the case was tentatively examined. The parties are in agreement about the completion of statutory period and about the fact that the petitioners are not previous convicts.
9. The trial in the instant case is yet to be concluded and the delay caused was not due to any fault by the present accused-petitioners or any person acting on their behalf.
10. ' The record made available to the Courts below and to this Court is evident of the fact that the accused petitioner Mr. Muhammad Azad Khan remained involved in six cases for attempt to murder, whereas, Muhammad Ishaq was also involved in three cases for attempt to murder. The trial Court observed that the delay in trial was not the fault by or on behalf of the accused- petitioners and they were under detention for a period more than two years. However, it was opined by the said Court that the accused petitioners were hardened, desperate and dangerous criminals, therefore, they could not be released on bail by taking benefit of third proviso to section 497, Cr.P.C. On account of embargo placed to third proviso in shape of 4th proviso.
11. ' Both the parties confined their arguments to the extent of fourth proviso to section 497. Cr.P.C.
12. Before going into the details, it is felt expedient to reproduce the relevant provision of amended law under which an accused-person is given a right to request for his release on bail in case the trial is not concluded within the period specified in the said proviso of law if the delay is not caused by any act or omission of the accused or any authorised agent on his behalf. The said proviso is called the third proviso to section 497, Cr.P.C. And reads as under:-- "Provided further that the Court accept where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person may be released on bail."
(a) Who being accused of any offence not punishable with death has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded; or
(b) who being accused of an offence punishable with death has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded."
13. ' The legislation has made the above quoted provision subject to another proviso called as 4th proviso which reads as under:-- "Provided further that the proviso of the third proviso to this subsection shall not apply to a previous convicted offender or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal."
14. A plain reading of the two provisos shows that bail can be refused to an accused under the following three circumstances:--
(a) In the opinion of the Court, the accused or any other person working on his behalf was responsible for delay in conclusion of trial; or
(b) accused was previously convicted; or
(c) in the opinion of the Court, the accused person was hardened, desperate or dangerous criminal.
15. ' As it is admitted by both the parties that the present petitioners neither caused the delay nor they were previous convict, therefore, it is only the third condition which requires consideration of the Court to form opinion with reference to the word "Criminal", hardened, desperate and dangerous as used in the fourth proviso for granting or refusing bail to the accused-petitioners.
16. ' The learned defence counsel while arguing their case, contended that it was statutory right of every accused to be released on bail under the third proviso to section 497(1), Cr.P.C. And this right can be denied only when the case of accused is attracted by the prohibition contained in the said provision or the case of an accused fell within fourth proviso to the said section. They further argued that it was principle of natural. Justice that during the pendency of trial, every accused was considered innocent unless proved guilty. No one could be presumed criminal in advance to put any one in the clutches of fourth proviso unless charges were proved. Therefore, in the estimation of leaned counsel, the trials Court travelled in the wrong direction to brand or dub the accused petitioners as hardened, desperate and dangerous criminals.
17. In order to arrive at some conclusion, it is "felt proper to see as to what the word ' criminal" hardened, desperate and dangerous means?. The embargo placed to third provision, to my humble knowledge, came before Mr. Justice Saiduzaman Siddique (then Judge of Sindh High Court) for the first time in the case titled "Rehim Bux v. The State" (PLD 1986 Karachi 224). The learned Judge after discussing the meaning of the word 'Criminal" from different dictionaries observed as under:-- "The word 'Criminal' both as defined in the ordinary dictionaries as well as in law dictionaries means a person who has been convicted or adjudged to be guilty of an offence. It, therefore, necessarily follows that a person against whom there are only allegations/accusations in the form of F.I.R. Or complaint and on the basis of these allegations proceedings are pending against him in a Court of law in which he is yet to be adjudged as guilty of the offence charged with, cannot be treated as a criminal, muchless a 'dangerous, desperate or a hardened criminal' ."
18. ' Thus, according to the learned Judge, an accused unless finally declared as guilty cannot be branded as criminal.
19. ' The second effort was made by Mr. Justice Sajjad Ali Shah (Then Judge of the Sindh High Court) while deciding a case titled "Muhammad Hanif v. The State (PLD 1986 Karachi 437) and the Honourable Judge observed as follows:-- "To put any other special meaning on the word 'Criminal' in that proviso to mean a person who is previously convicted of the crime would tantamount to rendering second half of the proviso as completely redundant and meaningless particularly when previously convicted offenders are specifically covered in the first part of the proviso."
20. ' Therefore, perview the Honourable Judge, the second part of fourth proviso indicates alternative.
21. ' The third attempt on the definition of the word "Criminal" was made by Mr. Justice Shall Muhammadi, (then Judge of Sindh High Court) While recording his observation in the case titled 'Omair Ahmed Siddique (1996 PCr.LJ page 22 Karachi). The learned Judge observed as follows:-- "Grammatically the word 'Criminal', in the English language, is used as an adjective as well as noun.
22. According to Webster's New Universal Unabridged Dictionary, meaning carried by the by the word 'Criminal' in both forms are as under:-- In its Adjective form" Criminals means:--
(1) guilty of a crime:
(2) Having the nature of crime, that violates a law of morality or wellbeing; as, the theft is a criminal act; (Ornaments only indications of vice, not criminal in themselves. Addition.)
(3) Involving or relating to crime; as criminal code, criminal law, criminal conversation; In its "noun form" criminal means:--
(1) One who has committed a crime;
(2) One who has been legally convicted of crime.
23. ' From the above, it is evident that the Honourable Judge, in the case of Rahim Bux had discovered only one meaning of the word criminal from different dictionaries i,e,, criminal means convicted person. But acceptance of such limited meaning creates to hurdles;-- '(Firstly it is clear from the fourth proviso that the legislature has mentioned two categories of accused persons in the proviso i,e,;
(a) Previously (1) convicted offenders;
(b) Persons who, in opinion of the Court are hardened, desperate or dangerous criminals.
24. ' Therefore, acceptance of opinion expressed in Rahim Bux case means to nullify one of two abovementioned categories by treating the same to be redundant. But it is settled principle of interpretation that redundancy must not be attributed necessarily to the legislature and the Courts are required to make every effort not to make redundant any part of statute and must, if necessary, stretch the language as to give it same meaning justified by context and object before legislature."
25. ' This time the learned Judge again contributed to the view taken by Mr. Justice Sajjad Ali Shah.
26. ' After a thorough survey of the above referred judgments and other case-law for-and against cited at bar, I respectfully subscribe to the view taken by Mr. Justice Sajjad Ali Shah and Mr. Justice Shafi Muhammadi. The word "or" in fourth proviso is used disjunctively. The Courts are primarily expected to adhere to the strict legal interpretation of word used. The word "or" in fourth proviso indicates an alternative. It, therefore, follows that a hardened, desperate and dangerous criminal need not to be previous convict. Had it been so then definitely the second half of the said proviso is redundant and meaningless. The better way to interpret a provision of law is to appreciate its general objects and to give its words their natural meanings in the light of that object. The primary duty of the Court is to find only meaning of the word used with reference to their object. The language and the word used in fourth proviso when seen in their true perspective, the word "Criminal" used in the said provision of law is to be understood in its ordinary meaning, viz., a person involved in a crime. Similarly a person of hardened, desperate and dangerous character means and includes a person having reckless disregard to other persons and property. Thus, its characteristics are a personal attribute and, therefore, the manner of commission of a crime is also an important consideration to arrive at any finding in this regard.
27. ' Before forming a tentative opinion while deciding a bail plea under the amended law, the nature of accusation and the manner of commission of offence, previous record of the accused which may include his previous prosecution and material placed before the Court like reports of police concerned and jail authorities etc. Are to be looked into. The object and intent of the 4th proviso appears to check the repetiton and perpetration of offence, While testing the case of the accused petitioners on the touch stone of the above referred criteria, the answer to their bail plea is in negative.
28. ' As stated earlier the accused petitioners in the instant case remained involved in different cases for attempt to murder and ultimately they are facing the trial on a murder count before the competent Court. The accused petitioners from the record made available to this Court appears to be dangerous, desperate and hardened criminals as they remained involved in criminal activities for many times and the different cases were registered against them.
29. No doubt that in some of the cases they were acquitted by giving them the benefit of doubt or on account of a compromise. Nevertheless it does not mean that they were not involved in those cases registered against them. It shows their mentality and when it reflects that the accused persons repeatedly remained involved in different criminal cases then definitely they could not be benefited out of the third proviso to section 497, Cr.P.C. They prima facie cannot be expected to keep from perpetration of offences.
30. ' Mr. Muhammad Azad, the accused petitioner also moved for his release on bail on the merits of the case and the trial Court decided all the applications through the impugned order but it failed to record any observation about his bail plea on merits. This Court is competent to decide bail plea of Mr. Azad Khan on merits of the case, but it is not proper to decide the same in absence of wisdom of the trial Court. Therefore, the accused petitioner Muhammad Azad Khan shall be at liberty to move afresh for his bail before the trial Court, if advised so.
31. ' In the light of above observations, the bail applications by the accused petitioners on the ground of statutory delay in the trial of the case stand rejected.