1998 S C M R 190
[Supreme Court of Pakistan]
Present: Ajmal Mian and Nasir Aslam Zahid, JJ
SHER ALI alias SHERI ---Petitioner
versus
THE STATE---Respondent
Criminal Petition for Leave to Appeal No. 204-L of 1997, decided on 19th November, 1997.
(On appeal from the order dated 30-4-1997 of the Lahore High Court, Lahore, passed in Criminal Misc. No.
5284/B/96).
(a) Criminal Procedure Code (V of 1898)---
----S. 497(1), third proviso---Bail on the ground of statutory delay---Right of accused---Exception---Accused
under third proviso to subsection (1) of S. 497, Cr.P.C. is entitled to bail as a matter of right if the statutory
period mentioned either in CI.(a) or Cl.(b) has expired and the trial has not been concluded, in view of the use
of the word "shall "---Such right can be defeated only if the State or the complainant shows that the delay in
trial is attributable to the accused-- Once it is shown, such right is forfeited.
Riasat Ali and another v. The State PLD 1977 SC 480; Barkhurdar v. Liaqat Ali and 2 others PLD 1977 SC
434; Abdul Rehman v. The State 1978 PCr.LJ 589;. Nazir Hussain v. Ziaul Haq and others 1983 SCMR 72;
Saleh Muhammad v. The State and another 1983 SCMR 341; Zahid Hussain Shah v. The State PLD 1995 SC
49; Wazir Khan v. State 1983 SCMR 427; Umar Draz and another v. State 1997 SCMR 885 and Akhtar Abbas
v. State PLD 1982 SC 424 ref.
(b) Criminal Procedure Code (V of 1898)---
----S. 497(1), third & fourth provisos---Bail on the ground of statutory delay-- Right of accused for bail under
the third proviso to S. 497(1), Cr.P.C. cannot be defeated on any other ground except the delay mentioned in
the relevant clause and the grounds provided in the fourth proviso thereof.
Riasat Ali and another v. The State PLD 1977 SC 480; Barkhurdar v. Liaqat Ali and 2 others PLD 1977 SC
434; Abdul Rehman v. The State 1978 PCr.LJ 589; Nazir Hussain v. Ziaul Haq and others 1983 SCMR 72;
Saleh Muhammad v. The State and another 1983 SCMR 341; Zahid Hussain Shah v. The State PLD 1995 SC
49; Wazir Khan v. State 1983 SCMR 427; Umar Draz and another v. State 1997 SCMR 885 and Akhtar Abbas
v. State PLD 1982 SC 424 ref.
(c) Criminal Procedure Code (V of 1898)---
----S. 497(1), fourth proviso---In order to bring an accused person within the compass of a hardened, desperate
or dangerous criminal it is not necessary to prove that he had been previously convicted, for the reason that
previously convicted persons are separately dealt with in the fourth proviso to S. 497(1), Cr.P.C.
(d) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Absconder---Fugitive from law and Courts loses some of the normal rights granted by the
procedural as also substantive law.---[Absconder].
Awal Gul v. Zawar Khan and others PLD 1985 SC 402 ref.
(e) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Abscondence of accused---Effect---Unexplained noticeable abscondence of accused
disentitles him to the concession of bail notwithstanding the merits of the case. ---[Abscondence].
Awal Gul v. Zawar Khan and others PLD 1985 SC 402 ref.
(f) Criminal Procedure Code (V of 1898)---
----S. 497(1), third proviso---Bail on the ground of statutory delay-- Abscondence of accused ---Effect---
Abscondence of accused will not disentitle him to claim bail on the ground of statutory delay, which right
accrues to him after he has been arrested and the statutory period mentioned in Cl. (a) or Cl. (b) of the third
proviso to S. 497(1), Cr.P.C. has expired---Where, however, the absondence of accused has contributed
towards the delay of the trial, then he would not be entitled to seek bail on the ground of statutory delay.--
[Abscondence].
(g) Criminal Procedure Code (V of 1898)---
----S. 497(1), third proviso---Penal Code (XLV of 1860), S.302/148/149-- Constitution of Pakistan (1973),
Art.185(3)---Bail on the ground of statutory delay---Had the accused not absconded he would have been tried
with the other co-accused whose trial was concluded by the Sessions Court on 31-10-1991 and their appeal
was disposed of by High Court on 16-7-1995---Four of the co -accused were granted leave to appeal by
Supreme Court on 24-10-1995---Case against the accused could not be proceeded with as Trial Court could not
get the record of the case from High Court till 2-1-1997 and such period of delay was attributable to the
accused---There would not have been any occasion to summon the aforesaid record for proceeding with the
trial against the accused if he had not absconded and he could not take advantage of his own wrong---Delay in
the trial up to 2-1-1997 being attributable to the accused, the period of two years specified in Cl. (b) of third
proviso to S. 497(1), Cr.P.C. had not expired---Bail was declined to accused in circumstances and leave to
appeal was refused accordingly.
Riasat Ali and another v. The State PLD 1977 SC 480; Barkhurdar v. Liaqat Ali and 2 others PLD 1977 SC
434; Abdul Rehman v. The State 1978 PCr.LJ 589; Nazir Hussain v. Ziaul Haq and others 1983 SCMR 72;
Saleh Muhammad v. The State and another 1983 SCMR 341; Zahid Hussain Shah v. The State PLD 1995 SC
49; Wazir Khan v. State 1983 SCMR 427; Umar Draz and another v. State 1997 SCMR 885; Akhtar Abbas v.
State PLD 1982 SC 424; Moundar and others v. State PLD 1990 SC 934; Awal Gul v. Zawar Khan and others
PLD 1985 SC 402; Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182; Najeeb Gul v. Khalid Khan and
another 1989 SCMR 899; Rais Khan v. Said Hanif and another 1979 SCMR 90; Rao Qadeer Khan v. State
PLD 1981 SC 93; Hayat Bakhsh and others v. State PLD 1981 SC 265 and Kh. Azhar Hussain and another v.
State 1983 SCMR 978 ref.
Dr. A. Basit, Advocate Supreme Court and Mehdi Khan Mehtab, Advocate-on-Record for Petitioner. .
R.A. Awan, Advocate Supreme Court and Muhammad Aslam Ch., Advocate-on-Record for the Complainant.
Faizur Rehman, Advocate Supreme Court for the State.
Date of hearing: 6th November, 1997.
ORDER
AJMAL MIAN, J.---This is a petition for leave to appeal against the order dated 30-4-1997 passed by a
learned Single Judge of the Lahore High Court in Criminal Miscellaneous No. 5284-B of 1996, declining the
petitioner's bail application.
2. The brief facts are that on the basis of the statement of Mushtaq Ahmed son of Said Muhammad, on 17-11-
1989 at 7.55 a.m. F.I.R. No.309 of 1989 was lodged under section 302/148/149, P.P.C. at Police Station
Sharaqpur Sharif, Tehsil Ferozewala, District Sheikhupura, alleging therein that at about 7-15 a.m. on 17-11-
1989, the complainant alongwith Rashid Ali, Amanat Ali, Karamat Ali were present at the Haveli when
Ghulam Ali armed with 7 MM rifle, Muhammad Hussain armed with .12 bore gun, Manzoor Ahmad armed
with 7 MM rifle, Sher Ali armed with 7 MM rifle, Amanat Ali armed with .12 bore gun, Muhammad Anwar
armed with 7 MM rifle, Mubashar Ali armed with 7 MM rifle, Muhammad Sarwar armed with .i2 bore gun,
Arshad son of Sadiq armed with 7 MM rifle, Muhammad Sarwar son of Ahmad Ali, armed with 7 MM rifle,
came there and encircled the Haveli. Ghulam Ali raised a Lalkara that they should be killed for purchasing the
land. Thereupon, Sher Ali son of Ghulam Ali, the present petitioner, opened fire which hit the face of Rashid
Ali who fell down on the ground. It was also alleged that the other co -accused also started indiscriminate
firing and after the death of Rashid Ali, they went away from the scene.
3. It seems that immediately after the above incident Sher Ali, the present petitioner, absconded. He was
declared as absconder after issuance of necessary proclamations etc. The challan was submitted against 10 co-
accused. After the trial, the learned Additional Sessions Judge, Ferozewala, by his judgment dated 31-10-1991
convicted six co-accused and awarded them. imprisonment for life each and a fine of Rs.10,000 each; in
default to undergo R.I. for the period specified therein. They were also convicted under section 109. P P.C. and
were ;awarded sentence of two years' R.I. The remaining four co-accused were ;acquitted. The aforesaid six
convicts filed Criminal Appeal No.108 of 1991, whereas the complainant party filed Criminal Revision No.749
of 1991 for ;11hancement of sentence. The above appeal gnu the criminal revision were disposed of by a
common judgment dated 16-7-1995, whereby the appeal of Ashraf convict was allowed but the convictions
and sentences of the remaining five convicts were maintained. It may be observed that while the aforesaid
appeal was pending, the petitioner's brother Manzoor, who was also convicted, absconded after availing the
bail on the ground of statutory delay of two years. Four of the above convicts whose appeal was dismissed by
the High Court filet Criminal Petition No.324/L of 1995, in which leave was granted on 24-10-1995
4. There appears to be controversy between the learned counsel for .the parties as, according to Dr. Basit,
learned Advocate Supreme Court for the petitioner, the petitioner had gone to Iran for participating in Iran-Iraq
War. He was allegedly taken as a prisoner of war. After he was released and came back to Pakistan on 20-6-
1994, he voluntarily surrendered on 22-6-1994. Whereas according to the learned counsel for the complainant,
Mr. R.A. Awan, there is nothing on record to support the above allegation. On the contrary, the petitioner was
arrested on 22-6-1994 which is evident from the police papers. According to him the petitioner had
deliberately absconded and appeared at the scene after the trial was over.
5. Be that as it may, the petitioner applied for bail on the ground of statutory delay before the learned
Additional Sessions Judge on or about 6-10-1996, which was declined for the following reasons:--
"I have gone through the record. So far as the conduct of the present petitioner is concerned, I would like to
maintain here that in the year 1989 the case was registered, the present petitioner was specifically nominated in
the F.I.R. for causing the murder of Rashid Ali. In the year 1989 the accused had absconded from the scene and
he was arrested after 4/5 years. In the meanwhile the case against the other accused persons was dealt with and
the file of the main case has already been requisitioned by the Honourable High Court, due to which the case
was being adjourned from time to time. In view of these circumstances the petitioner is not found entitled to
the concession of bail because if at this stage he is granted bail, then it would not be possible for the police to
arrest him as such like desperate persons if enlarged on bail using the discretion in a violative manner, the
same is not appreciated by the law applicable thereto. Even otherwise in the challan of this case the petitioner
has taken opportunities for the appointment of his counsel and on 2-9-1996 he again stated before this Court
that he would appoint his own counsel. Meaning thereby that by his act he has been getting adjournments by
one pretext or the other which disentitles him the concession of bail. As per the record finally the order was
made on 30-9-1996 while appointing Mr. Sohrab Aslam, Advocate to defend the case on behalf of the present
accused person on State expenses and the evidence was summoned which was present on the previous date, so
the case can be concluded at the earliest. Hence no ground is available in favour of the present petitioner for
granting him bail on the statutory ground. Accordingly the bail petition is dismissed. "
6. After that he approached the High Court through his aforesaid criminal miscellaneous application for bail,
which also failed. The learned Judge in Chambers took note of the fact that the petitioner had been absconder
and that he had not been vigilant to engage a counsel for himself or to move a petition for the appointment of a
counsel on his behalf by the trial Court till 14-1-1996 when the defence counsel was appointed. It was further
concluded that clause (b) of third proviso to subsection (1) of section 497, Cr.P.C. could not be invoked. The
petitioner has, therefore, filed the present petition for leave to appeal.
7. In support of the above petition Dr. A. Basit, learned Advocate Supreme Court appearing for the petitioner,
has vehemently contended that the learned Additional Sessions Judge as well as the learned Judge in Chambers
erred in holding that the factum of the petitioner's abscondence or the alleged delay or failure on his part to
engage a counsel or to file an application, in this regard, could be a relevant factor for declining bail on the
ground of statutory delay. He has invited our attention to the fact that the petitioner was taken into custody on
22-6-1994 and till 2-1-1997 the trial Court had not received the record from the High Court of the proceedings
in which above six co-accused were convicted. According to him this period between 22-6-1994 to 2-1-1997 is
more than two years and that during this period, the trial could not have been proceeded with and thus the
factum that the petitioner had failed to engage a counsel or had delayed the filing of an application for getting a
counsel engaged by the State, are not relevant factors.
According to Dr. Basit, once the statutory period mentioned in the third proviso to subsection (1) of section
497, Cr.P.C. expires, an accused person is entitled to bail as a matter of right unless the delay has been
occasioned by him or on his behalf in the trial or his case is covered by the fourth proviso.
On the other hand, Mr. R.A. Awan, learned counsel appearing for the complainant, has vehemently contended
that the Courts below have properly exercised discretion in refusing bail to the petitioner. According to him the
petitioner is not entitled to claim bail for the reason, firstly, that he remained absconder for nearly 4/5 years.
Secondly, the petitioner was the main accused nominated in the F.I.R. as he allegedly caused the fatal injury on
the face. Thirdly, the petitioner's brother, Manzoor, who was convicted, had absconded after availing the
release from the High Court on the ground of statutory delay. .
Dr. Basit has pointed out that prior to the incorporation of the third proviso by Ordinance LXXI of 1979 on 22-
12-1979, there was no provision in the Code of Criminal Procedure entitling an accused person to claim bail
on the ground of delay. However, if the delay in trial was such which could shock judicial conscience, bail
used to be granted by the Court. In this regard he has referred to the case of Riasat Ali and another v. The State
(PLD 1977 SC 480), which was decided on 20-12-1976, in which the facts were that the petitioners had
already been in custody in connection with the case for one year and 9 months and there was no likelihood of
the commencement of trial for another two or two and a half years, this Court admitted the accused to bail
though it was declined by the High Court. The relevant portion of the judgment reads a., follows:--
"From the information given by the learned counsel for the State it becomes clear that even though the
petitioners have already been in custody in connection with this case for one year and nine months, they 'are
likely to remain so far another 2 or 2-1/2 years before their trial can be expected to commence, thus making a
period of nearly four years in custody without trial. Although this Court has generally taken the view that delay
per se is not a good ground for allowing bail but we have no doubt at all in our mind that a delay of four years
in the likely commencement of the trial is indeed an in conscionable and inordinate delay, such as would entitle
the petitioners to be enlarged on bail. In our jurisprudence an accused person is presumed to be innocent unless
found guilty by a competent Court, and accordingly to hold a person in custody for nearly four years without
any prospect of even commencing the trial strongly militates against this concept so as to amount to an abuse
of the process of the Court."
He has also referred to the case of Barkhurdar v. Liaqat Ali and 2 others (PLD 1977 SC 434), which was
decided on 22-2-1977, in which this Court cancelled the bail of the accused and made the following
observations as to the effect of delay:--
"Having heard the learned counsel for the parties we feel that unfortunately an impression of a conflict of
views in matters of bail on the ground of delay has gained ground. We may, however, reiterate that the legal
position admits of no equivocation or uncertainty inasmuch as it is not delay per se in all cases of murder
regardless of its responsibility or other circumstances that would justify the grant of bail. It is only such
inordinate delay as amounts to abuse of the process of the Court that would justify grant of bail. Most
regrettably, however, in the peculiar circumstances with which the Courts are confronted, namely, the acute
inadequacy of manpower in the judiciary and the huge accumulation of files at the District level, particularly
since after the abolition of commitment proceedings, two to three years' delay in the commencement of trial as
a matter of course seems to be quite inevitable. The unprecedented filing up of murder cases awaiting trial and
the resultant congestion in jails owning to a large number of under trials has 1eated an unparalleled situation.
While on the one hand under trial prisoners are detained for two to three .years and even more in some cases,
the Courts cannot afford to make discriminatory orders granting bail on ground of delay in one case and
refusing it in another for the same reason."
He has also referred to the case of Abdul Rehman v. The State (1978 PCr.LJ 589), wherein a Division Bench of
the Lahore High Court (the judgment was authored by Saad Saood Jan, J., as he then was) after referring to the
above two cases of this Court admitted the accused to bail on the ground that no prospects existed of the trial
being held within reasonable time and that detention of an accused for an indefinite period amounted to abuse
of the process of Court.
8. It seems that the question, what period of delay would be sufficient to shock a judicial conscience in order to
entitle an accused person bail on the ground of delay, varied from Court to Court and from Judges to Judges. It
is evident that in the above two reports, namely, in the case of Riasat Ali (supra) and in the case of Abdul
Rehman (supra), this Court and the High Court not only taken into consideration the delay which had already
taken place in the trial of the case but even future delay, which might have accrued; whereas in the case of
Barkhurdar (supra), the expected future delay was not taken into consideration. In our view, Dr. Basit is right
in submitting that in order to eliminate uncertainty as to the period of delay which could entitle an accused
person bail, the Legislature incorporated third proviso to subsection (1) of section 497, Cr.P.C. by Ordinance
No.LXXI of 1979. After that by Ordinance No.XXXII of 1983 on 26-12-1983, the fourth proviso was added to
subsection (I) of section 497, Cr.P.C. It appears that the above third and fourth provisos were omitted by
Ordinance No.III of 1993 on 15-3-1993. However, they were again incorporated by Act XIX of 1994 (assent of
the President was given on 28-10-1994 and gazetted on 14-11-1994). It may be pointed out that in the fourth
proviso after the words "dangerous criminal", the words "or involved in terrorism" have been added first time
by the above Act. It may be advantageous to reproduce the above newly-added third and fourth provisos by
Act XIX of 1994, which read as under:--
"Provided further that the 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 or in exercise of
any right or privilege under any law for the time being in force, 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, the provisions of the third proviso to this subsection 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 involved in terrorism. "
A perusal of the above-quoted third proviso indicates that the Court is obliged to release a person on bail who,
being accused of any offence not punishable with death, if he has been detained for such an offence for a
continuous period exceeding one year and whose trial for such offence has not concluded. Similarly, under
clause (b) of above proviso, the Court is obliged to release a person who, being accused of an offence
punishable with death, if he has been detained for such offence for a continuous period exceeding two years
and whose trial for such offence has not concluded. However, this is subject to the condition provided in the
above third proviso, namely, that the delay in the trial of the accused should not have occasioned by any act or
omission of the accused or any other person acting on his behalf.
Whereas fourth proviso provides a further rider on the above statutory right of an accused person to bail on the
above ground of statutory delay by laying down that the third proviso to above subsection shall not apply to a
previously convicted offender for an offence punishable with death or imprisonment for life or a person who in
the opinion of the Court is a hardened, desperate or dangerous criminal or involved in terrorism.
9. It will not be out of context to refer the following cases relied upon by Dr. A. Basit and Mr. R.A. Awan:--
(i) Nazir Hussain v. Ziaul Haq and others (1983 SCMR 72);
in which this Court, while cancelling bail granted by the High Court, dilated upon the effect of the
incorporation of third proviso in the following terms--
"9. The ground of delay for grant of bail in cases falling within the prohibition contained in subsection (1) of
section 497, Cr.P.C. before the effective amendment, was undoubtedly controlled by the discretion of the Court
concerned. The facts varied from case to case and accordingly the discretion exercised was creating some
anomalies. That is why the Legislature intervened and the law was made more certain. One of the changes
effected in the statute from the previous practice in the exercise of discretion, was that the grant of bail on
expiry of certain specified period and under certain conditions was made a matter of right and not only of
discretion. We do not agree with the learned counsel that the use of the word 'shall' in the third proviso, is in
the meaning of 'may'. Learned counsel failed to notice that while in first proviso the word 'may' has been used,
in the second and third the word 'shall' has been used with a view to highlight it. Moreover, reading 'may' for
the word 'shall' in third proviso would be in large majority of cases to the detriment of the accused and his
liberty, when it becomes due in the context of bail. We accordingly repel the argument of the learned counsel
and hold that word 'shall' in third proviso will have to be read in its ordinary sense. That being so.,, there is
nothing in the entire proviso, its main part as also sub-clause (b) to show the grant of bail on ground of delay in
cases covered thereunder has been left (in a general way) to the discretion of the Court. We also do not agree
with the argument that the matter being entirely of the discretion of the Court it is empowered to take into
account the expected/apprehended delay."
(ii) Saleh Muhammad v. The State and another (1983 SCMR 341);
In the above case this Court, while cancelling bail granted by the High Court, quoted with approval a passage
from the case of Nazir Hussain v. Ziaul Haq (supra).
(iii) Zahid Hussain Shah v. The State (PLD 1995 SC 49);
in which the High Court had declined bail for the following reasons:--
"5. After hearing learned counsel for the parties, I am of the view that delay in the conclusion of the trial is not
exclusively attributable to the prosecution. Proceedings were protracted on account of the summoning of an
accused placed in column No.2. The petitioner is alleged to have caused a Churri injury on a vital part of the
body of Shabbir Ahmed injured. The said injury was declared grievous.
6. In this view of the matter, I do not consider him entitled to the concession of bail and accordingly dismiss
his application. "
This Court, while admitting the accused to bail, made the following observations as to the import of third
proviso to subsection (1) of section 497, Cr.P.C.:--
"The right of an accused to be enlarged on bail under the 3rd proviso to section 497(1), Cr.P.C. is a statutory
right which cannot be denied under the discretionary power of the Court to grant bail. The right of an accused
to get bail under the 3rd proviso of section 497(1), Cr.P.C. is not left to the discretion of the Court but is
controlled by that provision. The bail under the 3rd proviso (ibid) can be refused to an accused by the Court
only on the ground that the delay in the conclusion of the trial had occasioned on account of any act or
omission of the accused or any other person setting on his behalf. The bail under the 3rd proviso ibid can also
be refused by the Court if the case of the accused fell under the 4th proviso to section 497(1), Cr.P.C. In all
other cases the Court must grant bail. In the case of Wazir Khan v. State 1983 SCMR 427, the petitioner was
refused bail by the High Court under the 3rd proviso to section 497, Cr.P.C. on the ground that the delay in the
trial had occasioned on account of abscondence of the co-accused in the case. "
(iv) Umar Draz and another v. The State (1997 SCMR 885);
in the above case this Court declined bail to the accused and maintained the order of a Division Bench of the
Lahore High Court which declined bail, which was sought on the ground of statutory delay for the reasons,
firstly, the question of jurisdiction of the Court remained unsettled as both the complainant and the appellant
agitated the above controversy before the High Court m writ petitions, and secondly, the delay in disposal of
the case was contributory and not solely attributable to the prosecution.
10. The above case-law indicates that under the third proviso to' subsection (1) of section 497, Cr.P.C. an
accused is entitled to bail as a matter of right if the statutory period mentioned either in clause (a) or clause (b)
has expired and the trial has not been concluded in view of the use of the word 'shall'. This right can be
defeated only if the State or a complainant shows that the delay in trial is attributable to the accused person
concerned. Once it is shown the above right is forfeited. Reference may be made to the case of Akhtar Abbas v.
The State (PLD 1982 SC 424), in which this Court while declining a petition for leave against the refusal of
bail observed as under as to the effect of delay caused by an accused in the finalisation of the trial:--
"4. We regret we are not impressed by these submissions, as we find that the requirements of the
law is not fulfilled in this case, as at least on eight occasions adjournments were sought by the defence
for one reason or the other. In such a case it does not appear to be the intention of the law to calculate
the amount of delay caused by the defence. All that is necessary is to see whether the finalisation of the
trial has, in any manner, been delayed by an act or omission on the part of the accused. In the present
case, the delay is partly attributable to the accused. The submission that the date in question was not
fixed for the hearing of the case is not correct. On the contrary, it is clear from the order sheet of the
trial Court on these dates most of the witnesses were summoned and were present, but their
examination had to be postponed owning to the request made by the defence counsel."
11. To put it precisely, we are inclined to hold that the right under the above third proviso cannot be defeated
for any other ground than the delay mentioned in the above clause and the grounds provided in fourth proviso,
namely:--
(a) That the accused concerned is previously convicted offender for an offence punishable with death or
imprisonment for life;
(b) That in the opinion of the Court the accused person is a hardened, desperate or dangerous criminal or is
involved in terrorim.
As regards the category of the accused mentioned in fourth proviso, it will not be out of context to refer to the
case of Moundar and others v. The State (PLD 1990 SC 934), in which a Full Bench of this Court comprising
the then learned Chief Justice and four companion Judges (the author of the judgment was Zaffar Hussain
Mirza, J.), very succinctly enunciated the import of the aforesaid fourth proviso as follows:--
"It is quite plain that the normal rule stipulated in the third proviso to section 497 was that an under trial
prisoner shall be released after expiry of the respective period, without the trial concluding. The fourth proviso
is in substance an exception to the aforesaid general rule contained in the third proviso. Before the .Court
applies the exceptional provisions of the fourth proviso, it has to form an opinion that the accused was a
previous convict or a criminal of one of the categories described therein. The words are ' in the opinion of the
Court'. Such opinion cannot be obviously subjective but must be based upon materials placed before the Court,
reasonably supporting the conclusion that the person concerned is a criminal of the classes described. The
word 'criminal' has not been defined. It will no be proper and indeed would be difficult to define it or give it a
specific meaning. However, it is a common word of the English language. According to the Shorter Oxford
Dictionary the word carries several meanings, including the meaning -- a person accused of a crime. In the
context of the provisions under construction, we feel that the word cannot be construed in the technical sense,
namely, that a formal accusation must be made against the person or that he should have been adjudged guilty
of a charge in a Court of law. It appears to have been used in the sense of a person who violates the law of the
land. The three adjectives qualifying the word ' criminal' may also be examined.
According to the same dictionary the word "harden" has been defined to mean, inter alia, (1) to render or make
hard; to indurate, (2) to embolden, confirm (3) 'to make callous or unfeeling and (4) to make persistent or
obdurate in a course of action or state of mind. The word 'hardened' has also been defined to mean 'made hard'
indurate; rendered callous; hard-hearted; obdurately determined in a course".
The same dictionary gives the meaning of the word ' desperate' inter alia, in relation to person: driven to
desperation hence reckless, violent, ready to risk or do anything.
The same dictionary gives the meaning of the word 'dangerous', inter alia, as fraught with danger or risk;
perilous, hazardous, unsafe."
12. We are in respectful agreement with the above enunciation of law. We are also inclined to hold that in order
to bring an accused person within the compass of a hardened,, desperate or dangerous criminal it is not
necessary to) prove that he had been previously convicted for the reason that previously convicted persons are
separately dealt with in the above fourth proviso as is evident. It must, therefore, follow that if the prosecution
places on record sufficient material before the Court to indicate that on the basis of tentative I assessment the
accused person involved can be treated as a hardened; desperate or dangerous criminal or a person involved in
terrorism, the bail on the ground of statutory delay can be denied.
13. Mr. R.A. Awan in support of his submission that since the petitioner remained absconder for nearly four
and a half years, he forfeited the right to obtain bail, has cited the case of Awal Gul v. Zawar Khan and others
(PLD 1985 SC 402 - decided on 28-11-1984), the case of Muhammad Sadiq v. Sadiq and others (PLD' 1985
SC 182- decided on 12-1-1985) and the case of Najeeb Gul v. Khalid Khan and another (1989 SCMR 899).
In the first case this Court has dealt with the effect of remaining absconder on the right of an accused person to
bail in the following words:--
"Unfortunately it has not been noticed in the High Court that all the accused in this case absconded. It has also
been ignored that in proper cases, even at the trial, abscondence can be treated as a very important piece of
evidence (as corroboration of eye-witnesses on showing the conduct of the accused). It has also been
unfortunately ignored that this Court has time and again cautioned that such a conduct cannot be ignored under
any law or principle. In some recent decisions also this question has been duly highlighted. They are Rais
Khan v. Said Hanif and another (1979 SCMR 90), Rao Qadeer Khan v. The State (PLD 1981 SC 93). Hayat
Bakhsh and others v. The State (PLD 1981 SC 265) and Kh. Azhar Hussain and another v. The State (1983
SCMR 978). It is now well-established law that a fugitive from law and Courts loses some of the normal rights
granted by the procedural as also substantive law. It is also a well-established proposition that unexplained
noticeable abscondence disentitles a person to the concession of bail notwithstanding the merits of the case the
principle being that the accused by his conduct thwarts the investigation qua him in which valuable evidence
(like recoveries etc.) is simply lost or is made impossible to be collected (by his conduct). He cannot then seek
a reward for such a conduct (in becoming fugitive from law)."
In the second case the principle enunciated in Awal Gul case (supra) was reiterated and reliance was placed on
the above judgment.
In the third case this Court while cancelling bail granted by High Court in a murder case observed that
abscondence deprives an accused the concession of bail unless he gets it as of right under subsection (2) of
section 497, Cr.P.C. or the offences are bailable otherwise. It has been further observed that the grant of bail as
of right under section 497(2). Cr.P.C. is possible only when a tentative finding is rendered that "there are not
reasonable grounds for believing that the accused has committed" a particular offence.
14. In Our view, simpliciter an act of abscondence on the part of an accused person will not disentitle him to
claim bail on the ground of statutory delay, which right accrues to him after he has been arrested and the
statutory period r mentioned in clause (a) or clause (b) of aforementioned third proviso, as the case may be, has
expired. However, if the act of abscondence has contributed towards the delay of the trial, in that event, an
accused person would not be entitled to seek bail on the ground of statutory delay. In the case in hand if the
petitioner would not have absconded, he would have been tried with the other co-accused, whose trial was
concluded by the learned Additional Sessions Judge on 31-10-1991. Their appeal was disposed of by the High
Court on 16-7-1995. Four of the accused were granted leave to appeal by this Court on 24-10-1995. The case
against the present petitioner could not be proceeded with as the trial Court could not get the record of the case
from the High Court till 2-1--1997. In our view this period of delay is attributable to the petitioner. There
would not have been any occasion to summon the above record for proceeding with the trial against the
petitioner if he would not have absconded. The petitioner cannot take advantage of his own wrong. We are not
in agreement with the learned Additional Sessions Judge or the learned Judge in Chambers that the delay on
the part of the accused to engage a counsel or to get a counsel engaged by the State before 30-9-1996, was
relevant in the present case as admittedly the record was received from the High Court on 2-1-1997 and before
that the case could not have been proceeded with.
15. Before concluding with the above discussion we may point out that Mr. R.A. Awan has submitted a
statement indicating that there were nine cases against the petitioner registered under various provisions of the
P.P.C. before the case in question and four cases after the present F.I.R. was lodged. On the other hand, Dr.
Basit submitted that a perusal of the above list of cases indicates that the same has been manipulated. Be that
as it may, since this was not before the trial Court or the learned Judge in Chambers, we are not inclined to
dilate upon the same.
16. As we are of the view that the delay in trial up to 2-1-1997 is attributable to the petitioner, the period of two
years specified in clause (b) of third proviso to subsection (1) of section 497, Cr.P.C. has not expired. The
above petition has no merits. Leave is refused. However, we direct the trial Court to conclude the trial by 28-2-
1998, failing which reasons should be conveyed to this Court. The office should intimate the trial Court about
abovc direction without any delay.
N.H.Q./S-22/S Leave refused
;
