Cr.Misc.No.

11802-B of 2010

25.11.2011

Mr.Nasir Ahmad Awan, Advocate, for petitioner.

Mirza Khurram Shahzad Baig, Advocate, for
complainant.
Mr.Muhammad Naeem Sheikh, DPG, with Muhammad
Altaf, S.I.
___
Through this application under section 497
Cr.P.C. the petitioner seeks post arrest bail in case FIR
No.11/2010 dated 9.1.2010 under section 395 PPC
registered at police station Saddar Muridke, District
Sheikhupura.
2.

According to the contents of the FIR, on 9.1.2010

at 7.00 p.m. eight unknown armed persons stormed into

the complainants house, held the inmates at gunpoint
and snatched gold ornaments weighing 135-tolas; cash
comprising Euros 18000; $2000; Rs.500,000/-; two
Rado wrist watches; two Citizen writ watches; licensed
.44 bore gun; four cameras and sixteen cell phones.
They also took away motorcycle No.LEO-6304 and fled
away from the scene of occurrence.
3.

It appears that the petitioner was subsequently

implicated on the statement of Shabbir, co-accused. He

was arrested on 28.1.2010.He approached this Court for
grant of bail. However, withdrew the petition on

Cr.M.11802-B/2011

30.9.2010. This is the second application seeking bail on

statutory ground.
4.

The learned counsel for the petitioner submits

that the petitioner was arrested on 28.1.2010 and has

continuously been in custody since then. The challan
was presented on 28.7.2010. However, the matter has
not proceeded further before the trial court. It is pointed
out that the trial court has not even framed the charge
so far and the petitioner is languishing in jail for the past
about two years. It is argued that the petitioner was not
named in the FIR, even the supplementary statement
recorded by the complainant did not mention the
petitioner. He submits that the petitioner has wrongly
been implicated on the statement of Shabbir who is a
co-accused in this matter. It is finally argued that the trial
of the petitioner has not been delayed on account of any
fault, act or omission attributable to the petitioner. He is,
therefore, entitled to the benefit of the fifth proviso to
section 497 Cr.P.C.
5.

The learned counsel for the complainant, on the

other hand, has opposed the present application. He

submits that the petitioner is guilty of a heinous offence.
Further, the trial of the matter has been delayed on
account of acts/omissions on the part of the prosecution
as well as those of the co-accused the benefit of which

Cr.M.11802-B/2011

cannot be taken by the petitioner. He therefore, submits

that the petitioner is not entitled to the benefit of the fifth
proviso.
6.

The learned Deputy Prosecutor General, while

opposing the application on merits, has candidly

conceded that the benefit of the fifth proviso is available
to the petitioner in the specific facts and circumstances
of this case.
7.

I have heard the learned counsels for the parties

and have gone through the record.

8.

The

petitioner was arrested

on

28.1.2010.

Challan was submitted in the trial court on 28.7.2010.

Thereafter, no appreciable progress has been made in
the trial. It appears that despite lapse of about one year
and four months after submission of challan even
preliminary steps towards commencement of the trial
have not been taken. Needless to add that the possible
date of commencement and conclusion of the trial is at
best an open ended matter.
9.

The recent amendment in section 497 of the

Code of Criminal Procedure, 1908, introduced through

the Code of Criminal Procedure (Amendment) Act,
2011, published on April 21, 2011, provides as follows:-

Cr.M.11802-B/2011

Amended of section 497, Act V of 1898.- In

the said Code, in section 947, in sub-section
(1),(i)

in the first proviso, after the word

Years the words or any woman shall
be inserted;

(ii)

the second, third and fourth provisos

shall be omitted; and

(iii)

in the fifth proviso, for the full stop at

the end of colon shall be substituted
and thereafter the following provisos
shall be added, namely: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

Cr.M.11802-B/2011

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.
Repeal.-

The

Code

of

Criminal

Procedure

(Amendment) Ordinance, 2010 (V of 2010), if not

already repealed, shall stand repealed on the date the
Code of Criminal Procedure (Amendment) Bill, 2011,
receives assent of the President.
10.

A perusal of the amendment indicates that bail

has to be granted if the case of the petitioner falls within

the purview of the conditions enumerated in the fifth
proviso. The case of the petitioner is covered by clause
(a) of the fifth proviso in view of the fact that the
petitioner is accused of an offence which is not
punishable with death and has been detained for the
said offence for a continuous period exceeding one
year. In order to deny benefit of bail to the petitioner, it
would have to be established that the delay in the trial of
the petitioner has been occasioned by an act or
omission of the accused or any person acting on his
behalf or he has previously been convicted for an
offence punishable with death or imprisonment for life or
that in the opinion of the Court, he is a hardened,
desperate or dangerous criminal or is an accused of an
act of terrorism punishable with death or imprisonment
for life.

Cr.M.11802-B/2011

11.

As far as the delay in conclusion of the trial is

concerned, a report was sought from the trial court

which was received in this Court on 5.10.2011 in which it
was categorically stated in the report by the trial court
that the delay is not attributable to the accused person,
namely, Aamer (present petitioner). It is also not the
case of the prosecution that the petitioner is a previously
convicted offender or that he is a hardened, desperate
or dangerous criminal. On the basis of the material
available on record, this Court has no reason to form an
opinion at this stage that the petitioner is hardened,
desperate or dangerous criminal or is accused of an act
of terrorism punishable with death of imprisonment for
life.
12.

In the case of Moundar and others Vs. The State

(PLD 1990 S.C.934), the words hardened, desperate or

dangerous criminal were examined by the Honourable
Supreme Court of Pakistan in the following terms: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

Cr.M.11802-B/2011

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

criminal

of

the

classes

described. The word criminal has not been

defined. It will not 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 English 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 hardened 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, indurated;

Cr.M.11802-B/2011

rendered

callous;

hardhearted,

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.
These appear to be the meanings
intended to be conveyed by the legislature by
using the words hardened, desperate or
dangerous criminal. Accordingly the view
taken by Sajjad Ali Shah, J, appears to be
correct and the construction placed by him is in
consonance with the intention of the legislature
underlying the provisions in question in the
context

of

the

whole

section.

In

the

circumstances we are unable to accept the

contention of Mr. Muhammad Hayat Junejo
that the facts and circumstances of the
prosecution case in which the accused person
seeking release on bail is facing trial cannot be
taken into consideration. The proposition relied
upon in support of the contention to the effect
that a finding in a criminal trial can only be
reached
evidence

upon

the

produced

assessment
in

the

of

entire

Court,

is

inapplicable, in so far as the opinion reached

by the Court for purposes of the 4th proviso has
nothing to do with the findings of the Court at
the trial. Indeed the conclusions drawn for the

Cr.M.11802-B/2011

purpose of disposal of a bail application cannot

be used to the prejudice of the accused as the
same are tentative in nature. However, there is
no justification for the argument that such an
exercise undertaken by the Court, violates the
principle that an accused person is presumed
innocent until proved otherwise. In subsection
(1) of section 497 the legislature has already
empowered

the

Court

even

before

the

commencement of the trial to make a tentative

assessment of the evidence collected against
an accused person or likely to be produced in
the trial against him, in order to reach the
conclusion

whether

there

appears

reasonable ground for believing that he has

been guilty of an offence punishable with death
or life imprisonment or imprisonment for 10
years. The provision under consideration here
is a proviso to the same subsection, and,
therefore, it will be reasonable to construe it in
the same manner authorizing a Court to take
into consideration the evidence collected by
the prosecution for purposes of determining
whether the accused is a criminal of the
categories prescribed therein. Of course the
Court can take into consideration and indeed in
most of the cases it will take into consideration
other materials produced by the prosecution in
order to show that the case falls within the
prohibitions contained in the 4th proviso.

13.

In the case of Zahid Hussain Shah Vs. The State

(PLD 1995 S.C.49) the provisions of the third and fourth

provisos to section 497(1) Cr.P.C. were examined. It may

Cr.M.11802-B/2011

10

be noted that the said provisos are couched in the same

language as the language of the fifth proviso to section
497 after its most recent amendment. The learned Court
while discussing the language of the third proviso held as
follows: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 acting 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.
14.

In the case of Jaggat Ram Vs. The State (1977

SCMR 361), the Honourable Supreme Court of Pakistan

granted bail by holding that the bail can be refused to an
accused under the fourth proviso to section 497(1)
Cr.P.C., despite the fact that his trial could not be
completed within the prescribed period only if he was
either a previous convict in an offence punishable for

Cr.M.11802-B/2011

11

death or imprisonment for life or is found by the Court to

be a hardened, desperate or dangerous criminal or was
involved in an act of terrorism.
15.

In the case reported as Rahim Bux and others Vs.

The State (PLD 1986 Karachi 224), Saeeduzzaman

Siddiqi, J (as he then was), while considering the
provisions of fourth proviso to section 497 Cr.P.C. held as
follows:A careful consideration of fourth proviso will
show that the concession of bail which is
available to an accused under the third proviso
to section 497(1), Cr.P.C. could be denied on
the ground that he is a previously convict
offender or a person who is in the opinion of
Court is a hardened, desperate or dangerous
criminal. The three adjectives, hardened,
desperate or dangerous used in the fourth
proviso are to be read with the word criminal.
In my view, therefore, in order to ascertain the
real object of Legislature in enacting the fourth
proviso the true meaning of the word criminal:
has to be discovered. The word criminal is not
defined in the Criminal procedure Code and it is
not contended before me that it is used in any
peculiar or particular sense. I will, therefore,
refer here the various dictionary meanings of
the word criminal. In the Concise Oxford
English Dictionary it is defined as:Criminal of (nature of) crime, guilty
of crime.

Cr.M.11802-B/2011

12

In Websters New World Dictionary (College

Edn.), it is defined as follows:having the nature of crime, wrong,
immoral. (2) involving or relating to
crime. (3) guilty of crime. n. a person
guilty of, or legally convicted of a
crime.
In

Walton

Law

Lexicon

the

expression

criminal is defined as;

Some person indicted for a public
offence and found guilty.
In Blacks Law Dictionary (5th Edn.) criminal is
defined as a person who has committed a
criminal offence; one who has been convicted
of a crime; one adjudged guilty of crime.
In Blacks Law Dictionary in addition to the
definition of word criminal the expression
dangerous criminal is also defined separately.
It is as follows:as one convicted of particularly
heinous crime or one who has been
escaped or tried to escape from
penal confinement by use of force of
an aggravated character.
Similarly the words desperate and hardened
used in the fourth proviso are also not denned
in the Criminal procedure Code or in the Penal
Code.

Therefore

in

accordance

with

the

accepted rule of interpretation these words are

to be construed according to their ordinary
dictionary meanings. Desperate is defined in
the Concise Oxford Dictionary as follows:-

Cr.M.11802-B/2011

13

as leaving no or little room for hope,

extremely dangerous or serious,
reckless from despair, violent,
lawless, staking on a small chance.
The word hardened is similarly defined in the
same dictionary as;
may or become hard, callous or robust.
On a careful reading of the fourth proviso
in the light of the above dictionary meanings of
the expressions, desperate, hardened and
dangerous criminal, I am in no doubt that these
expressions do not cover a person against
whom there is only an accusation in the shape
of a complaint or F.I.R. The word criminal both
as defined in the ordinary dictionaries as well
as in Law dictionaries means a person who has
been convicted or adjudged to be guilty of an
offence. It, therefore, necessarily follows that a
person

against

whom

there

are

only

allegations/accusations in the form of F.I.R. or

complaint and on the basis of these allegations
proceedings are pending against him in a Court
of law in which he is yet to be adjudged as
guilty of the offence charged with, cannot be
treated as criminal, muchless a dangerous,
desperate a hardened criminal. In the case
before me none of the accused persons have
been convicted so far of any offence. It is also
not contended that they have been adjudged to
be criminal in any proceedings earlier. In these
circumstances, in my view the learned trial
judge was not justified in declining concession
of bail to these persons under the third proviso

Cr.M.11802-B/2011

14

to section 497, Cr.P.C. merely on the basis that

the case registered against them disclosed
allegation of serious nature or that at the time of
commission of alleged offence the applicants
had allegedly shown some degree of anxiety or
desperation.
16.

Even if for the sake of argument the allegations

contained in the FIR were to be accepted as correct and

assuming that sufficient material was available on the
record to connect the accused with the commission of the
offence alleged against him, at best, an offence under
section 395 PPC could be made out which is not
punishable with death or imprisonment for life. As such
the last proviso which empowers the court to deny bail to
a person who in the opinion of the Court is hardened,
desperate or dangerous criminal or an accused of an act
of terrorism punishable with death or imprisonment for life
is not attracted. Further, on the basis of the law laid down
in Rahim Buxs case ibid, I am of the view that merely on
the basis of the case registered against the petitioner,
which is yet to be proved, he cannot be denied the
concession of bail. Needless to add that the prosecution
has neither alleged nor placed any document on the
record to show that the petitioner has any previous
conviction of any offence. The absence of a previous
conviction goes in favour of the petitioner in taking him out
of the mischief of the last proviso.

Cr.M.11802-B/2011

17.

15

After hearing the learned counsels for the parties

and going through the record, I am of the view that the

petitioner has made out a case to be released on bail
because he is entitled to the benefit of the latest
amendment in the 5th proviso to section 497 Cr.P.C. The
petitioners trial has not concluded despite lapse of more
than one year and nine months of his arrest during which
time he has continuously been in confinement. The delay
in conclusion of the trial is not attributable to the petitioner
and the petitioner has no previous conviction for an
offence punishable with death or imprisonment for life.
Further, there is nothing on record on the basis of which
this Court may form an opinion that he is a hardened,
desperate or dangerous criminal or accused of an act of
terrorism punishable with death or imprisonment for life.
18.

For reasons recorded above, this petition is

allowed. The petitioner is admitted to bail provided he

furnishes bail bond in the sum of Rs.100,000/- (one
hundred thousand) with two sureties in the like amount to
the satisfaction of the trial court.
19.

Before parting with this order, it is clarified that

observations made herein are on the basis of tentative

assessment of material placed before this Court at this
stage. These shall not be taken into account or prejudice
the mind of the trial court which shall hold proceedings on

Cr.M.11802-B/2011

16

the basis of evidence/material brought before it during trial

of the case.
(IJAZ UL AHSAN)

JUDGE
APPROVED FOR REPORTING
M.Tariq