M. IDREES vs THE STATE

ORDER

' Since common question of law is involved in both these bail applications they are being disposed of by a consolidated order.

2.Applicant M. Idrees who is detained in Crime No,264 of 1980, Police Station Preedy under section 307/34, P.P.C. And Crime No, 178 of 1986, Police Station Preedy under section 307/34, P.P.C., applied for bail before IVth Additional Sessions Judge (South) Karachi, mainly on the ground of statutory delay, but without success. He has, therefore, approached this Court with the same prayer.

3. 1 have heard Mr. I.A. Hashmi, learned counsel for applicant and Mr. Shaukat H. Zubedi, learned A.A.-G. For State. The latter has opposed the bail applications.

4. The bail applications are pressed before me solely on the ground of statutory delay. Admittedly the applicant who is facing trial in two cases under section 307/34, P.P.C., which are not punishable with death, is in custody for a continuous period exceeding one year and the trial has not been concluded. The record also shows that the delay in trial has not been occasioned by an act or omission of the applicant or his counsel. The bail was, however, refused to applicant as in the opinion of the trial Judge the applicant is a hardened, desperate or dangerous criminal.

5. The effect of fourth proviso to subsection (1) of section 497, Cr.P.C. Whereunder bail was refused to applicant was examined by me in Jumo v. The State, reported in 1989 P Cr. L J 1235, and it was observed.

"Ordinarily the word 'or' is used disjunctively. It is the duty of a Court to primarily adhere to the strict legal interpretation of the words used. The word 'or' used in the fourth proviso to section 497 of the Code of Criminal Procedure, 1898, indicates an alternative. It, therefore, follows that a 'hardened desperate or dangerous criminal' need not be a previous convict. There is no better way of approaching the interpretation of a provision of law than to endeavor to appreciate the general object that it serves and to give its words their natural meaning in the light of that object. The primary duty of the Court is to find the natural meaning of the words used in the context in which they occur. The word 'criminal' used in fourth proviso is, therefore, to be understood in its ordinary meaning viz, a person involved in a crime. Clause (I) of section 110, Cr.P.C. May also be looked into with a view to find out the intention of the legislature in using the words 'desperate' or 'dangerous' in the fourth proviso.

A person of desperate and dangerous character means a person who has a reckless disregard of the safety and property of others. Thep characteristic of being a desperate and dangerous is a personal attribute and, therefore, the manner in which an accused person has conducted himself at the time of commission of offence is also an important consideration in arriving to a finding of this nature. The opinion of the Court to this effect which is always tentative in nature, can be formed on the basis of:-

(i) nature of accusation and conduct of accused at the time of alleged incident;

(ii) previous record of the accused which may include his earlier prosecution; and

(iii) material placed before the trial Court like reports of concerned police and jail authorities. It is the cumulative effect of all the three aspects that may finally determine a tentative opinion in this behalf."

6. The orders by which bail was refused to applicant show that the applicant is involved in 13 cases of murder and attempt to murder. The applicant and his companions are alleged to have made a murderous assault upon Shahid Hussain, brother of complainant Zahid Hussain in Crime No, 264 of 1980. The applicant and his associates repeated the same act, but this time the victim was complainant Zahid Hussain himself (Crime No, 178 of 1986). The object in keeping a person under trial in detention is to prevent repetition of the offence or perpetrating some other offence. On the face of this record the applicant appears to be a dangerous criminal by habit. The word 'habit' implies a tendency or capacity resulting from the repetition of the same acts. It implies frequent practice or use and connotes depravity of character as evidenced by frequent repetition.

7. There is conflict of opinion on the true interpretation of fourth proviso to subsection (1) of section 497, Cr.P.C. And to resolve the same leave has been granted by the Supreme Court in Mounder and others v. The State, reported in 1988 SCMR 1113. The decision is, however, awaited.

8. The view taken in Jumo v. The State 1989 P Cr. L J 1235, seems to me in consonance with the intention of Legislature and till any authoritative decision is given by the Supreme Court the ratio decided of this decision is to be followed.

9. Having regard to the above legal position, I find no merit in the bail applications and dismiss the same.

10. At the conclusion of the hearing of bail applications, I had by short orders dismissed the same and I now proceed to record the reasons for the said short orders.