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Petitioner: SHER ALI alias SHERI VS Respondent: THE STATE
Court Name: Supreme Court of Pakistan Judge(s): Nasir Aslam Zahid, Ajmal Mian Title: SHER ALI alias SHERI vs THE STATE Case No.: Criminal Petition for Leave to Appeal No, 204-L of 1997 Date of Judgment:1997-11-19 Reported As: 1998 SCMR 190 Result: Leave refused
Judgment 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 .12 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
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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 enhancement of sentence. The above appeal and 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 filed 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
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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 as 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 inconscionable 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 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
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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 created 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 Abdui 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. Basic 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 (1) 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 hail -- (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 (h) 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
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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 SCM R 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 SCM R 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.
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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 SCM R 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 SCM R 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 in 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 finalistion 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 undertrial prisoner shall be released after expiry of the respective period, without the trial
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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…
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