HABIBUR REHMAN AND 3 OTHERS Versus THE STATE Mufti Muhammad Idrees, Ghulam Mustafa Swati , Khawaja Nazir Ahmed,, Muhammad Akbar Khan, Anwar Khurshid Turk

Accused-petitioners charged under section 302/109/34, P.P.C. vide F.I.R. No. 161, dated 19-11-1985, Police Station Balakot, District Mansehra were earlier refused a bail up to this Court on merits. They applied for bail under the third proviso to subsection (1) of section 497, Cr.P.C. soon after expiry of two years to their detention for offences due to non-conclusion of their trial. The learned trial Court in the Additional Sessions Judge, Mansehra, however, found them apparently hardened, desperate or dangerous criminals having committed the very murder in a brutal manner after tying down the hands and feet of the deceased with nylon rope inside their house and factually slaughtering him, which act was considered to have been committed by criminals of the type only.

2. Petitioners next approached this Court stating that the facts of the case under trial were sub judice; the so-called confessions, the only material evidence have since been retracted by the accused petitioners; the petitioners were not previous convicts at all, not to speak of convicts of heinous offences and that they could not be in any case termed as hardened, desperate or dangerous criminals in depriving them of their right to bail under the third proviso to subsection (1) of section 497, Cr.P.C.

3. After scrutiny of the requisite record and hearing the learned counsel for the parties and learned Assistant Advocate-General for the State at some length it was found that some 10 witnesses of the prosecution have already been examined, four witnesses have been abandoned and nine witnesses remain to be examined, out of whom also some are reported formal witnesses.

4. It is on record that the petitioners are not previous convicts, rather not even earlier charged for any offence, not to speak of heinous offence. Anyhow the petitioners are charged for instant murder in a brutal and callous manner. They had tied down the hands and feet of the deceased with nylon rope whereafter they had butchered the deceased with Chhuri and severed the head from his body and later on beheaded dead body of the deceased was thrown in river 'Kinhar'.

5. One side argued that a person can be adjudged as criminal only after he is convicted or adjudged to be guilty of an offence and that mere allegations/accusation in the form of first information report or complaint in which he is yet to be adjudged as guilty, on that basis he cannot be treated as criminal, muchless a dangerous or desperate criminal. In support reference was made to P L D 1986 Kar. 224 and P L D 1986 Pesh.

92. The other side argued that a person can be called criminal if he indulges in or associates with crime even if not caught in the process, tried and convicted and that the Court can form an opinion on the basis of material collected in the case under trial as well other extraneous material produced by the prosecution to help the Court in the formation of an opinion that the accused is a hardened, desperate or dangerous criminal. In support reference was made to P L D 1986 Kar. 437, 1987 P Cr. L J 573 and 1987 P Cr. L J 965.

6. With due deference I would fall in agreement with the latter view. In fact fourth proviso is to be considered as a rider on the third proviso to subsection (1) of section 497, Cr.P.C. and shall exclude the former's application in case of a previous convict or an accused about whom the Court forms an opinion that he is a hardened, desperate or dangerous criminal. Apparently fourth provision was added with a sole purpose to exclude the cases of previous convicts from the application of third proviso and further to vest a power in the trial Court not to extend the concession of bail under the third proviso to accused about whom it forms an opinion on the basis of material placed before it in the case under trial or other cases that the accused is a hardened, desperate or dangerous criminal. Even prior to the above legislation in murder cases delay was considered a relevant factor but was not considered per se sufficient ground to release the accused on bail. Delay was also not considered relevant in case of accused likely to misuse the privilege of bail. Again particularly in this part of the country bail in murder and other heinous cases punishable with death has not been granted on account of delay where there was apprehension of the abscondence of the accused after their release on bail. Besides forfeiture of bonds has been noticed to have least served as a deterrent to procure attendance of such accused later on.

7. To sum up, in view of the nature of the offence and the manner in which the offence has been perpetrated, this Court would confirm the orders of the trial Court in not releasing the petitioners under the third proviso to subsection (1) of section 497, Cr.P.C. Resultantly the bail application is dismissed.

M.Y.H./620/P Bail refused.