Muhammad Faisal Versus State

Criminal Miscellaneous (B.A) No. 87-M of 2025, decided on 24th March, 2025.

Authored by Muhammad Ijaz Khan. Result: Petition dismissed.

Summary

This matter concerns a post-arrest bail application filed by the petitioner, Muhammad Faisal, who is accused of murdering his wife on the pretext of honor. The primary legal question was whether the petitioner, despite the statutory delay in the conclusion of his trial, was entitled to bail under the third proviso to Section 497(1) of the Code of Criminal Procedure 1898. The Court held that while the petitioner established a prima facie case for bail due to the delay in trial, he was disentitled to this relief because his case fell under the fourth proviso to Section 497(1) of the Code of Criminal Procedure 1898. The Court reasoned that the nature of the offense, the brutal manner of commission, and the petitioner's subsequent unnatural conduct classified him as a 'hardened, desperate or dangerous criminal.' The key principle laid down is that the statutory right to bail due to trial delay is not absolute; it is subject to the fourth proviso, which allows courts to deny bail if the accused is deemed a hardened, desperate, or dangerous criminal based on the facts and circumstances of the case.

Questions settled in this judgment

Does the statutory right to bail due to trial delay under the third proviso to Section 497(1) of the Code of Criminal Procedure 1898 apply if the accused is considered a hardened, desperate, or dangerous criminal?
What factors should a court consider when determining if an accused is a 'hardened, desperate or dangerous criminal' under the fourth proviso to Section 497(1) of the Code of Criminal Procedure 1898?
Is an accused entitled to bail under the third proviso to Section 497(1) of the Code of Criminal Procedure 1898 if the delay in trial is not attributable to the accused?
Does the absence of a previous criminal record preclude a court from classifying an accused as a 'hardened, desperate or dangerous criminal' under the fourth proviso to Section 497(1) of the Code of Criminal Procedure 1898?

Laws & provisions referred

post-arrest bailstatutory delayhonor killinghardened criminalfourth provisotrial delaybail cancellation

Order

Muhammad Ijaz Khan, J .--- This order is directed to dispose of an application filed by the petitioner namely Muhammad Faisal for the grant of post arrest bail in case FIR No. 241 dated 01.03.2022 registered under sections 302, 311, 120-B, 34 P.P.C at Police Station Mingora District Swat, on the ground of statutory delay in conclusion of his trial.

2.It is the case of prosecution against the accused/ petitioner that he, along with his co-accused, on 12.02.2022 has committed the murder of his wife namely Mst. Lubna through use of violence inside his house on the pretext of honor and thereafter concealed her dead body in a wooden box.

3.Arguments heard and record perused.

4.The record would show that the petitioner was arrested in this case on 04.03.2022 and thereafter supplementary challan was put in Court on 09.05.2022 while complete challan was put in Court on 11.02.2023 and charge was framed on 18.10.2022 but till date despite the lapse of 03-years and 21- days, the trial of the accused/ petitioner could not be concluded. The order sheets of the learned trial Court were gone through with the able assistance of both the learned counsel for the parties and learned A.A.G representing the State and prima facie it is established on the record that the delay in conclusion of the trial is neither attributable to the present accused/ petitioner nor to the learned counsel representing the petitioner, therefore, to this extent the accused/ petitioner has made out a case for the grant of bail under the third proviso to section 497 (1) Cr.P.C, however, since the said third proviso is subject to and controlled by the fourth proviso to section 497 (1) Cr.P.C, therefore, both these provisos, being relevant, are produced below:

"497. When bail may be taken in cases of non-bailable offence. (1)

Provided that

Provided further that

Provided further that the Court shall, except where it is of the 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 or in case of a woman exceeding six months 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 in case of a woman exceeding one year and whose trial for such offence has not concluded:

Provided further that the provisions of the foregoing proviso shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who in the opinion of the Court, is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life."

. The plain reading of the above reproduced third and fourth provisos would show that an accused person could get the benefit of the third proviso if his case is not covered by any of the three conditions precedent as provided under the aforesaid fourth proviso i.e., firstly that if he is a previously convicted offender for an offence punishable with death or life imprisonment; secondly that if he, in the opinion of the Court, is a hardened, desperate or dangerous criminal; and thirdly that if he is an accused of an act of terrorism punishable with death or imprisonment for life. The aforesaid conditions Nos. first and third are irrelevant for the case of the present petitioner as admittedly he is neither a previous convict nor he has been an accused of an act of terrorism, however, the question that as to whether the second condition precedent where, in the opinion of the Court, an accused could be treated as a hardened, desperate or dangerous criminal, could be attracted to the case of the present petitioner, which is to be thrashed out in the following paras.

5.In order to determine that as to whether the case of the present petitioner is covered under the fourth proviso to section 497 (1) Cr.P.C so as to hold him as entitled or not for the concession of bail under the third proviso. It is by now an established jurisprudence that while forming such an opinion, the Court of law, may amongst others factors, could consider the nature of offence, the role attributed to the accused, the manner in which the offence was committed and the conduct of the accused and thus if the aforesaid yardstick is applied to the case of the present petitioner then it is prima facie on the basis of admitted facts established on record that the fourth proviso to section 497 (1) Cr.P.C does attract to the case of petitioner as it is an admitted fact that the petitioner and the deceased were spouses inter se and it is part of the record that a decomposed dead body of the deceased (wife of petitioner) was recovered from his kitchen-cum-room which was concealed in a wooden box. It is also part of the record that they (petitioner and deceased) were blessed with five children and the Court was informed that at the time of incident, they were having a suckling baby of the age of five months only, however despite the fact that the occurrence has allegedly taken place on 12.02.2022, and it was reported to the local police not by the present petitioner but by his brother namely Muhammad Yousaf with a delay of about 18 days on 01.03.2022 when by then the foul smell of the decomposed dead body was felt by all around in the vicinity but the present petitioner kept mum as neither he himself reported the matter to the local police nor at least inquired about the incident of went missing of his deceased wife for 18 long days. The unnatural conduct of the petitioner becomes more relevant and significant if his stance, as taken by him before the Investigation Officer, is taken into consideration which is to the effect that since his deceased wife was not having a good moral character, therefore, he has killed her and then put her dead in a wooden box and thus in the given facts and circumstances and keeping in view the mode and manner of the occurrence and the subsequent unnatural conduct of the petitioner, it can safely be concluded that the fourth proviso to section 497 (1) Cr.P.C does attract to the case of present petitioner and thus in such eventuality, he could not be given the benefit of the third proviso to section 497 (1). The question that as to whether a person could legally or religiously take the life of another person on the pretext of honour came up for resolution before the Apex Court in the case titled "Muhammad Akram v. The State" reported as "PLD 2001 SC 96 where it was held that nobody had any right nor could anybody be allowed to take law in his own hands to take the life of anybody in the name of "Ghairat" as neither the law nor the religion permits the so called honour killing which amounted to "Qatl-i-Amd" simpliciter. It was further held that such iniquitous and vile act was violative of the fundamental right as enshrined in Article 9 of the Constitution, which provides that no person would be deprived of life or liberty except in accordance with law and any custom or usage in that respect is void under Article 8 (1) of the Constitution. Thereafter, the same issue also came up before the learned Lahore High Court in the case titled "Umer Din v. State and others reported as 2017 YLR Note 378, p.272, where it was held that such accused would not be entitled for the grant of bail under the third proviso. More-so, the Hon'ble three members Bench of the Apex Court recently in the case titled "Nadeem Samson v. The State and others" reported as PLD 2022 SC 112 has thrashed out the question of applicability of the third and fourth provisos to section 497 (1) Cr.P.C. Para No.8 (eight) of the said judgment, being relevant, is reproduced below:

"8. The scope of the 3rd proviso to section 497(1), Cr.P.C. has recently been expounded by this Court in the Shakeel Shah case, cited by the counsel for the petitioner, by examining and interpreting its provisions as well as the provisions of the related 4th proviso, in detail. We, therefore, think it unnecessary to re-examine the scope of those provisos again in this case, especially when we find ourselves in agreement with what has been held in that case. What we consider appropriate to do is to recapitulate the main principles enunciated therein, as to the meaning, extent and scope of the 3rd proviso, for clear understanding of, and compliance by, all the other courts in the country in terms of Article 189 of the Constitution of the Islamic Republic of Pakistan 1973. They are:

(i)The purpose and object of the 3rd proviso to section 497(1), Cr.P.C. is to ensure that the trial of an accused is conducted and concluded expeditiously, and that the pre-conviction detention of an accused does not extend beyond the period of two years in cases involving an offence punishable with death, or one year in other cases;

(ii)The period of one year or two years, as the case may be, for the conclusion of the trial begins from the date of the detention of the accused in the case, not from the date when the charge is framed and trial commenced;

(iii)A statutory right to be released on bail accrues in favour of the accused if his trial is not concluded within the specified period, i.e., exceeding one year or two years as the case may be, from the date of his detention;

(iv)This statutory right of the accused to be released on bail is, however, subject to two exceptions: one is embodied in the 3rd proviso itself and the second is provided in the 4th proviso, which are: (a) the delay in conclusion of the trial is occasioned by an act or omission of the accused or by any other person acting on his behalf, and (b) the accused is a convicted offender for an offence punishable with death or imprisonment for life, or is in the opinion of the court a hardened, desperate or dangerous criminal, or is accused of an act of terrorism punishable with death or imprisonment for life.

(v)The act or omission on the part of the accused to delay the timely conclusion of the trial must be the result of a visible concerted effort orchestrated by the accused. Merely some adjournments sought by the counsel for the accused cannot be counted as an act or omission on behalf of the accused to delay the conclusion of the trial, unless the adjournments are sought without any sufficient cause on crucial hearings, i.e., the hearings fixed for examination or cross-examination of the prosecution witnesses, or the adjournments are repetitive reflecting a design or pattern to consciously delay the conclusion of the trial; and

(vi)The phrase "a hardened, desperate or dangerous criminal" denotes an accused who is likely to seriously injure and hurt others without caring for the consequences of his violent act and will pose a serious threat to the society if set free on bail. Such tentative finding as to character of the accused must be based upon careful examination of the facts and circumstances of the case, supported by sufficient incriminating material.

In the light of the above principles, we proceed to appreciate the statutory ground of delay in conclusion of the trial pleaded by the counsel for the petitioner, for grant of bail to the petitioner."

Similarly, the scope, extent and the applicability of fourth proviso again came up before another Hon'ble Bench of the Apex Court in another case titled "Allah Wasaya v. The State and others" reported as PLD 2022 SC 541 , where the Apex Court has held that:

"6. The word "criminal" in the phrase "hardened, desperate or dangerous criminal" of the fourth proviso to Section 497(1), Cr.P.C., as held by a five member bench of this Court in Moundar v. State, 1 is not to be construed in the technical sense for a person who has been adjudged guilty of a charge in a Court of law, i.e., a convicted person; it has rather been used in its ordinary sense for a person who violates the law of the land and is accused of committing a crime. Further, the fourth proviso to section 497(1), Cr.P.C. deals with the previously convicted offenders separately. Therefore, in order to bring an accused within the compass of a hardened, desperate or dangerous criminal, it is not necessary to prove that he has a previous criminal record of conviction. 2 It is thus obvious that the previous criminal record of convictions or of pendency of other criminal cases, though may be taken into consideration as a supporting material, is not an exclusive deciding factor to form an opinion as to whether the accused is a hardened, desperate or dangerous criminal. Such an opinion is to be formed by the court mainly on basis of the facts and circumstances of the case, borne out from the material available on record, wherein the bail is applied on the ground of delay in conclusion of the trial, 3 by considering inter alia, the nature of the offence involved, 4 its effects on the victims or the society at large, 5 the role attributed to the accused, 6 the manner in which the offence was committed 8 and the conduct of the accused. 8 Needless to mention that the formation and recording of such opinion as to the character of the accused, like the opinion as to reasonable grounds for believing his involvement in the commission of the offence, is of tentative nature, and is thus open to re-examination and final determination on conclusion of the trial.

7. The meaning and scope of the phrase "hardened, desperate or dangerous criminal" have also been explained in Shakeel Shah, 9 wherein this Court held that the words "hardened, desperate or dangerous" point towards a person who is likely to seriously injure and hurt others without caring for the consequences of his violent act and can pose a serious threat to the society if set free on bail, and such tentative opinion as to the character of the accused is to be formed by the court upon careful examination of the facts and circumstances of the case. We are of the considered view that the court may also refer to any previous criminal record, if available, for forming such opinion but it matters little if the accused does not have a previous criminal record. The very gravity and severity of the act alleged to have been committed by the accused, even though for the first time, may be sufficient to attract the fourth proviso to section 497(1) Cr.P.C. in the peculiar facts and circumstances of a case and may lead the court to form opinion that the accused is a hardened, desperate or a dangerous criminal."

Likewise, in the case titled "Iqbal Brohi v. The State" reported as 1998 PCr.LJ 2066 , the learned Sindh High Court has refused bail to the accused on the basis of statutory ground when his case was covered by the fourth proviso to section 497 (1) Cr.P.C.

6.In view of the above stated peculiar facts and circumstances of the present case if placed in juxtaposition with the law so far developed on the subject, then this Court is of the opinion that though the accused/ petitioner has succeeded to make out a case for the grant of bail under the third proviso to section 497 (1) Cr.P.C, but since due to the nature and mode and manner of the commission offence coupled with the conduct of the petitioner, who was nobody else but the husband of the deceased, the fourth proviso to section 497 (1) Cr.P.C does attract to the case of the present petitioner, therefore, he is held as disentitled for the benefit of the third proviso to section 497 Cr.P.C.

7.Accordingly, this bail petition is dismissed, however, the learned trial Court is directed to conclude the trial of the petitioner expeditiously but not later than three months from today, with the compliance report, which is to be submitted to the worthy Additional Registrar of this Court for my perusal in Chamber.

JK/116/P Petition dismissed.

Judges on this bench

Muhammad Ijaz Khan186 judgments