2024 Y L R 595
[Balochistan]
Before Muhammad Aamir Nawaz Rana, J
REHMATULLAH
and 2 others ---Applicants
Versus
The STATE--- Respondent
Criminal Bail Application No. 652 of 2022, decided on 5th January, 2023.
(a) Criminal Procedure Code (V of 1898) ---
----S. 497 ---Penal Code (XLV of 1860), Ss. 302, 337- A(ii), 337 -F(ii), 147, 148, 149 & 109---
Qatl-i-amd, shajjah -i-mudihah, causing badi'ah, rioting, rioting armed with deadly weapon,
unlawful assembly, abetment ---Bail, refusal of ---Plea of statutory delay in conclusion of trial
rejected ---Accused were charged for committing murder of the nephew of complainant and
causing firearm injuries to his son ---Though S. 497(1), clause (b), Cr.P.C. stipulated that any
one accused of an offence punishable with death, who had 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 had not concluded, was entitled for concession of bail but the perusal of said provision revealed that the bar had been imposed upon those accused who in the opinion of the Court were hardened desperate or dangerous criminals ---Perusal of record
of present case showed that there was allegation of illegal business of drugs against the accused persons ---Record further revealed that on 12.02.2020 the accused persons allegedly
attacked upon nephew of complainant and thereafter on 13.02.2020 the nephew of complainant was murdered ---Bar contained in proviso to 497(1), Cr.P.C. was attracted to the
case of the accused persons and it was not necessary that such bar was only attracted to the case of previous convicts ---Bail application being without any merit was dismissed, in
circumstances.
Mounder and others v. The State PLD 1990 SC 934 rel.
(b) Criminal Procedure Code (V of 1898) ---
----S.497--- Bail order ---Observations of Court ---Scope ---Observations made in the bail order
are purely tentative in nature and same will not influence merits of the case. [p. 599] B
Ali Ahmed Lehri for Applicants.
Abdul Razzaq Shar and Maqbol Ahmed Mengal for the Complainant.
Fazal -ur-Rehman, State Counsel.
Date of hearing: 30th December, 2022.
ORDER
MUHAMMAD AAMIR NAWAZ RANA, J. ---The applicants were arrested in
pursuance of FIR No. 08/2020, which was registered at Police Station, Noshki under
Sections 302, 337- A(ii), 337- F(ii), 147, 148, 149 and 109, P.P.C. by one Haji Abdul Malik
(complainant) on 13.02.2020. The gist of FIR can be encapsulated: the complainant had alleged that the applicants were involved in the illegal business of drugs and on the complaint of complainant the brother of applicants namely Muhammad Yousaf who was "police employee" was dismissed from Department of Police thereafter, the accused started
threatening the complainant and on 12.02.2020 they had injured the nephew of complainant
namely Najeebullah and on 13.02.2020 the applicants along with other co- accused attacked
upon the sons and nephew of the complainant. Consequently Samiullah after receiving
homicidal injuries died and the accused/applicant namely Rehmatullah was arrested at the spot. The complainant had alleged that he was victimized just because he had raised voice against the "drugs dealers".
After registration of FIR, the investigation was carried out and on completion of
investigation the report under Section 173, Cr.P.C was submitted to the Court of competent jurisdiction and the trial of the case was committed to the Court of Sessions Judge, Noshki who after full -fledged trial found the applicants guilty and awarded sentence of life
imprisonment to all the applicants.
The applicants filed appeal against their conviction and this Court vide judgment
dated 31.08.2022 remanded the matter to the trial Court as provision of Section 353, Cr.P.C was not complied with by the trial Court. After remand of the matter the trial is still pending, meanwhile, applicants had filed application for post -arrest bail which was dismissed by the
trial Court vide order dated 22.11.2022.
2. Learned counsel mainly contended that the applicants are behind the bars for more
than 2 years, therefore, on the basis of statuary delay, the applicants are entitled for post -
arrest bail. Further submitted that the role of firing at the deceased has not been attributed to the applicants, therefore, the applicants deserve to be admitted on bail. Learned counsel while concluding his arguments submitted that there are material contradictions amongst prosecution witnesses, therefore, the matter is being one of further inquiry, while conversely learned counsel for complainant and State Counsel strongly opposed this bail application. They contended that applicants are nominated accused in the FIR and they were involved in the illegal business of drugs and when complainant made complaint to the concerned department the brother of applicant (Muhammad Yousaf) was dismissed from service thereafter in order to take revenge initially on 12.02.2020, the applicants had attacked upon nephew of complainant and on next date i.e. 13.02.2020 they repeated their crime and managed to kill the nephew of complainant namely Samiullah, therefore, the applicants do not deserve any leniency.
Arguments heard. Record perused.
3. The applicants were previously convicted by the trial Court and were awarded life
imprisonment. They filed appeal and considering the fact that provision of Section 353,
Cr.P.C. was not complied with in letter and spirit and the matter was remanded to the trial Court. Learned counsel for the applicants has urged that considering the facts that applicants are behind the bars for more than 2 years, therefore, statuary ground is available to them under Section 497, Cr.P.C., for grant of bail; for facility of reference Section 497, Cr.P.C. and its amended proviso is reproduced as under:
"497. When bail may be taken in cases of non- bailable offence. (1) When any person
accused of non -bailable offence is arrested or detained without warrant by an officer -
in-charge of a police station, or appears or is brought before a Court, he may be
released on bail, but he shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or '[imprisonment for life or imprisonment for ten years]
Provided that the Court may direct that any person under the age of sixteen years [or any woman] or any sick or infirm person accused of such an offence be released on bail:
Second, third and fourth provisos as added by Ordi. V of 2010 omitted by Act VIII of 2011 Provided further that a person accused of an offence as aforesaid shall not be released on bail unless the prosecution has been given notice to show cause why he should not be so released:
[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."
(Emphasis Provided)
Though Section 497(1) clause (b) stipulates that any accused of an offence punishable
with death, who 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 is entitled for concession of bail but the perusal of ibid provision transpires that
the bar has been imposed upon those accused who in the opinion of the Court are hardened
desperate or dangerous criminals.
4. The perusal of record transpires that there is allegation of illegal business of drugs
against the applicants. The record further reveals that on 12.02.2020 the applicants allegedly had attacked upon nephew of complainant and thereafter on 13.02.2020 the nephew of complainant was murdered. After thorough analysis of ibid provision the bar contained in proviso 497(1), Cr.P.C. is attracted to the case of the applicants and it is not necessary that this bar only attracts to
the case of previous convicts. Reliance in this regard is being placed upon the case titled
as "Mounder and others v. The State
1". The relevant excerpt of said judgment at page/939 is
reproduced as under:
"The word "criminal" cannot be given a special meaning as a person already convicted of a crime for in that case, the category of provision convicts having been separately mentioned as disentitled to the privilege of release on bail on the ground of statutory delay, the words under interpretation to the effect that the person is hardened, desperate or dangerous criminal, would be rendered completely redundant and meaningless. According to the learned Judge, therefore, opinion on this question can be based upon the materials available in the case under trial as well as any other material which may be produced by the prosecution to help the Court in formation of such opinion. Somewhat similar view was expressed by another learned Judge of the Sindh High Court in Gull Khan and others v. The State PLD 1986 Kar. 629, in which the word "criminal" was construed in the context of provision under consideration, to mean a person "accused of criminal offence or who is known to be or reputed to committing crime".
At page No. 941 it is observed as under: -
"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 a reasonable ground for believing that he has been guilty of an offence punishable with death or life imprisonment or imprison -ment 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 purpose 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."
For the forgoing reasons, the bail application being without any merit is hereby
dismissed.
The observations made herein- above are purely tentative in nature and same shall not
influence merits of the case.
JK/58/Bal. Application dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.