MOUNDER Versus STATE

ORDER

ZAFAR HUSSIAN MIRZA, J .‑‑This petition for leave to appeal from the order of a learned Single Judge of Sind High Court, dated 12th November, 1987, whereby the petitioners' application for grant of bail was dismissed, raised an important question of law pertaining to the true interpretation and scope of the 4th proviso to section 497(1), Cr.P.C. Section 497 empowers the Court to grant bail in case of non‑bailable offences and the 3rd proviso to subsection (1) of this section inserted by Ordinance 71 of 1979, and the 4th proviso inserted by Ordinance XXXII of 1983 read as follows:‑

"Provided further that Court shall except 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 shall 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:

Provided further that provisions of the third proviso to this subsection shall not apply to a previously convicted offender or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal."'

2. This question of law has arisen in the following circumstances. The petitioners were taken into custody in connection with an occurrence which took place on 20th June, 1985, in which four persons are said to have been killed and one seriously injured. The petitioners moved the learned Additional Sessions Judge, Larkana, who was holding the trial against the petitioners under sections 302, 307, 404, 148 and 149, P.P.C. and 13‑D Arms Ordinance for bail on the ground that they had been detained for a continuous period exceeding two years without trial being concluded. The learned Additional Sessions Judge, came to the conclusion that the trial was delayed on account of the accused themselves and as such, they were not entitled to bail on that ground.

3. The petitioners then went up before the High Court and upon hearing the counsel for the parties the learned Single Judge of the High Court did not agree with the view taken by the learned Additional Sessions Judge that the delay was attributable to the accused themselves. However, he held that the petitioners were dangerous and desperate persons and consequently their case fell within the prohibition contained in the 4th proviso to subsection (1) of section 497, Cr.P.C. and accordingly they were not entitled to bail. In this connection it will be pertinent to set out the reasons that prevailed with the learned Judge which are as under:‑

"The applicants were members of an unlawful assembly and were armed with deadly weapons and in prosecution of the common object of that unlawful assembly as many as 4 persons were killed and attempt was made to kill the 5th person causing him grievous injuries. As such the applicants were not entitled to the benefit of the above proviso. The contention of the learned A.A.G . is correct. There can be no doubt about the fact that the alleged offence was most heinous and was committed in such a way that the only conclusion that can be drawn from the same is that the applicants were dangerous and desperate persons."

4. It is contended by Mr. Muhammad Hayat Junejo learned counsel appearing for the petitioners, that bail could be refused in such cases only when it is established by the prosecution that the applicant is a dangerous, desperate or hardened criminal and such conclusion cannot be based merely on the allegations which are the subject‑matter of the trial which is yet to be concluded. In support of this submission; the learned counsel pressed in service the cardinal rule of criminal justice that an accused person is presumed to be innocent till such time as his guilt is proved beyond reasonable doubt.

5. It is further argued that even if construction placed by the, learned Judge is held to be correct, the petitioners according to the prosecution case were attributed fire‑arm injuries to two of the deceased but even so Rafiq Ahmad (P.W.) who has already been examined has not supported the prosecution case. The submission of the learned, counsel is that if the learned Judge had taken into consideration the above features of the prosecution case he would not have come to the conclusion that the petitioners were desperate or dangerous criminals.

6. After perusing the provisions in question the contentions raised seem to be of first impression. The word "criminal" has not been defined in the Criminal Procedure Code and, therefore, needs to be construed authoritatively in order to determine whether under‑trial‑h prisoner could be held to be a criminal before the determination of his guilt at the trial for purposes of bail and on what material a Court is supposed to determine the question whether he is desperate or dangerous. One view could be that such matters for purposes of bail are to be decided on a tentative basis and upon a finding that the accused is reasonably guilty of the allegations made against him. However, we have been told that there is conflict of opinion on the true interpretation of these provisions in the High Court, which needs to be resolved.

7. We, therefore, grant leave to appeal to consider the aforesaid contentions. The appeal shall be prepared on the present record with liberty to parties to file additional documents if any and shall be fixed for hearing during January, 1988.

M.I./M‑388/S Leave granted.