JALAL vs ALLAHYAR and another

' AJMAL MIAN, J.---The above two appeals are with the leave of this Court against a common order dated 30-1-1992 passed by a learned Single Judge of the High Court of Sindh in Criminal Bail Applications Nos.1137 and 1138 of 1991, admitting respondent No,1 in each of the above two appeals to bail on the ground of expiry of statutory period of two years. Respondent No,1 in both the above appeals were declined bail on the above ground by the IIIrd Additional Sessions Judge, Sukkur.

2. The respondent No,1 in the above two appeals are facing trial under section 302/147/148/149, P.P.C. Alongwith four co-accused pursuant to Crime No,122 of 1989 of Police Station, Mirpur Mathelo, District Sukkur, in respect of two murders, namely, of deceased Palio and Muhammad Jaffar.

3. Leave to appeal was granted to consider, whether the learned Judge in chamber was justified in taking a contrary view to the view found favour with the learned trial Court on the question that respondent No, 1 in each of the above two appeals was hardened, desperate or dangerous criminal keeping in view of ratio of the jugdment in the case of Muhammad Hanif v. The State (PLD 1986 Kar.

437), which was approved by this Court in the case of Moundar and others v. State (PLD 1990 SC 934).

4. In support of the above appeals, Mr. Abdul Mujeeb Pirzada, learned ASC appearing for the appellant, has urged that the learned trial Court had dilated upon the question as to the manner in which the murders were committed in order to arrive at the conclusion that the two respondents were hardened, desperate or dangerous criminals, but the learned Judge in chamber without adverting to the above aspect, has taken a contrary view and founded his conclusion on the report of the Jail Authorities. In furtherance of his above submission, he has invited our attention to the following portions of the orders of the trial Court and the High Court, which read as follows:- "Order of the trial Court dated 9-10-1991: Learned A.P.P. On behalf of the State and learned Advocate for the complainant have opposed grant of bail to the applicants/accused as they alongwith co- accused had committed double murders in such a cruel manner which shows that the applicants are hardened, criminal and desperate, therefore, they are not entitled for grant of bail in this case.

' Admittedly, the applicants abovenamed were arrested on 17-9-1989 but the trial of this case is not yet concluded. The facts of the case as disclosed by the complainant in the F.I.R. Show that the applicants/accused alongwith co-accused have committed double murders in such a cruel manner, therefore, according to my humble opinion the act of the applicants seems that they are hardened, criminal and desperate.

' Order of High Court dated 30-1-1992: In the present case the applicants have also placed on record a report from the Jail Authorities which shows that the conduct of the present applicants in the jail is satisfactory. Also there is nothing on the record to show that they are the persons of criminal nature or they were previously involved in any other crime. The present incident is shown to have taken place on a public road and the present applicants are alleged to have fired at the deceased in order to avenge the murder of their relation. In these circumstances with all respect to the abovesaid cases I am of the view that the present applicants would be entitled to grant of bail under IIIrd proviso to section 497(1), Cr.P.C. And the provisions of IVth proviso of the same section would not be attracted."

' He has also referred to the case of Muhammad Hanif v. The State (supra) and the case of Moundar and others v. State (supra).

5. In the above first case, Sajjad All Shah, J. (as his Lordship then was), while declining bail on the ground that the applicant was a hardened and desperate criminal, inter alia observed that a finding in regard to an accused person, being hardened, desperate or dangerous criminal, can be given by a Court by reference to facts of bail application or by reference to other extraneous matters which may be brought to the notice of the Court. In the above case, a number of criminal cases were pending against the applicant. He was also accused of raping daughters of his own sister and subjecting them to prostitution. The bail was refused as stated hereinabove after taking into consideration the above facts.

In the above second case, this Court, while granting bail to the accused person which was declined by the Courts below on the ground that he was hardened, desperate or dangerous criminal in terms of proviso (4) of subsection (1) of section 497, Cr.P.C., observed that the Court can take into c consideration and indeed in most of the cases it will take into consideration prosecution in order to show that the case falls within the prohibition contained in fourth proviso to the above section. It was held that there was not sufficient material to support the opinion of the learned Judge of the High Court that the appellants were dangerous and desperate criminals.

6. There cannot be any cavil with the propositions of law enunciated in the above two judgments.

However, the question is, as to whether in the present case, the learned Judge in chamber was justified to admit respondent No,1 in the above two appeals to bail on the ground of statutory delay of two years under third proviso to subsection (1) of section 497, Cr.P.C. We are unable to subscribe to Mr. Abdul Mujeeb Pirzada's contention that the learned Judge in chamber has solely relied upon the report of the Jail Authorities about the conduct of respondent No,1 in the Jail. On the contrary, the learned Judge has pointed out that there was nothing on record to show that the above respondents were the persons of criminal nature or they were previously involved in any other matter. It is true that the learned Judge in chamber has not referred to the manner of the commission of the two murders specifically but the above observation that there is nothing on record to indicate that the above respondents were persons of criminal nature or they were involved in any other crime, was sufficient to conclude that they were entitled to bail under the above third proviso to subsection (1) of section 497, Cr.P.C.

7. We have gone through the F.I.R. And we find that even the manner of the commission of the offence committed by respondent No,1 in the above two appeals does not indicate that they were hardened, desperate or dangerous criminals. Respondent Allah Yar allegedly had fired one shot at the left arm of one of the deceased and so also Ghulam Rasool as per F.I.R. The above acts attributed to the above respondents do not indicate that they were desperate, hardened or dangerous criminals. If the above respondents could have killed the deceased in a brutal way by cutting the bodies into pieces or by indiscriminately firing by Klashnikovs or would have dragged the dead bodies in order to disgrace the deceased and other members of the family, one could urge that the manner of the commission of offence was such which indicated that the respondents were hardened, desperate or dangerous criminals in terms of fourth proviso to subsection (1) of section 497, Cr.P.C., but this is not the case.

8. No exception can be taken to the impugned order. Both the above appeals are dismissed.