Aurangzeb Vs State & another

PESHAWAR HIGH COURT

MINGORA BENCH

(Judicial Department) B.A. No. 421-M/2025 (Aurangzeb v/s State & another)

ORDER

Date of hearing: 25.7.2025 Petitioner: - (Aurangzeb) by Mr. Shabir Ahmad Khan (Dawlat Khel), AHC.

Respondents: - (State & another) by Mr. Naeem Khan, Astt: A.G and Sardar Zulfiqar, ASC. SALAH-UD-IN, J.- This order shall dispose of application of present petitioner namely Aurangzeb, for his release on bail, in case FIR No.

636 dated 11.8.2022, U/Ss 302, 324, 337-F (iii), 337-A (vi),376,506,336,201 PPC, R/W section 15- AA of P.S Saidu Sharif, District Swat, on account of statutory delay in conclusion of his trial.

2.As per contents of ibid FIR complainant namely Badar Zaman reported the matter to local police at casualty ward of Saidu Sharif hospital, whereby she charged present petitioner namely Aurangzeb for committing the murder of his father namely Sultan Ghani and causing firearm injury to his sister namely Mst. Hadia. Motive qua commission of offence was to be annoyance of the petitioner over the participation of sister of the complainant in the marriage ceremony.

Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

3.Arguments of learned counsel for parties as well as learned Astt: A.G for State were heard and requisitioned record gone through with their valuable assistance.

4.A bare look of record would reveal that earlier bail application of present petitioner was dismissed by this Court on merits on the strength of its order dated 25.7.2024, rendered in Cr.M B.A No.

397-M of 2024, however, learned trial Court was directed to conclude trial within five months. Upon conclusion of the aforesaid target period of five months, when trial of the petitioner could not be concluded, he again approached the learned trial Court for his release on bail on the ground of statutory delay, however, this time around too, his attempt was ended on failure vide order dated 02.7.2025. Now present petitioner through instant bail petition seeks his release on bail mainly on the ground that though he was arrested on 13.8.2022 and charge has been framed against him on 16.3.2023, however, till date his trial could not be concluded, therefore, under third proviso to section 497 (b), Cr.P.C, he is entitled to concession of bail, on account of statutory delay in conclusion of his trial, being incarcerated in jail for continuous period of more than two years.

Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

5.As against this, learned counsel for

complainant as well as learned Astt: A.G for State vehemently opposed the grant of bail in favour of present petitioner solely on the ground that present petitioner is prima facie a hardened, desperate or dangerous criminal, as he was accused of committing murder of father of the deceased namely Sultan Ghani and causing firearm injury to his sister-in-law ()بھابی namely Mst. Hadia. There was also a specific motive in field, wherein present petitioner being a brother-in- law ( )دیورhas shown a high degree of annoyance over the participation of his sister-in-law in the marriage gathering, which is normally discretion of a husband in this part of the society, rather than a stranger i.e.

petitioner, therefore, they vehemently opposed the grant of bail in favour of petitioner, in view of exception contained in 3rd proviso to section 497 (1), Cr.P.C.

6.Before dilating upon the issue-in-hand, it would be in the fitness to things to reproduce section 497, Cr.P.C, which is relevant for the present controversy: -

97.When bail may be taken in case of non-bailable offence.(1) When any person accused of any nonbailable 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 appear reasonable grounds for believing that he has been guilty Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

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: Provided further that where a woman accused of an offence is refused bail under the foregoing proviso, she shall be released on bail if she has been detained for a continuous period of six months and whose trial for such offence has not been concluded, unless the court 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 her behalf.

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 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.

(underline supplied)

Aforesaid provision of law clearly

manifests that a person accused of an offence punishable with death has the right to be released on bail, if he/she has been detained for continuous period exceeding two years or whose trial for such an offence is not concluded, subject to the exception provided in 3rd proviso that accused is neither hardened nor desperate nor dangerous criminal.

Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

7.Aforesaid issue qua grant of refusal of bail to an accused person, on the plea of being hardened, desperate and dangerous criminal came up before Hon’ble Lahore High Court in case titled “Umer Din Vs. State etc” reported as PLJ 2015 Cr.C (Lahore) 420, where it was held that such accused would not be entitled for grant of bail under third proviso. Similarly, Hon’ble three members Bench of apex Court in case titled “Nadeem Samson Vs. The State and others” reported as PLD 2022 SC 112 has dilated upon the question of applicability of third and fourth provisos to section 497 (1) Cr.P.C. Para No.8 of said judgment being relevant for present controversy is reproduced as under:-

“8. The scope of the 3rd proviso to section 497(1), Cr.P.C. has recently been expounded by this Court in the Shakeel Shah case, cited by the counsel for the petitioner, by examining and interpreting its provisions as well as the provisions of the related 4th proviso, in detail. We, therefore, think it unnecessary to re-examine the scope of those provisos again in this case, especially when we find ourselves in agreement with what has been held in that case. What we consider appropriate to do is to recapitulate the main principles enunciated therein, as to the meaning, extent and scope of the 3rd proviso, for clear understanding of, and compliance by, all the other courts in the country in terms of Article 189 of the Constitution of the Islamic Republic of Pakistan 1973. They are:

(i)The purpose and object of the 3rd proviso to section 497(1), Cr.P.C. is to ensure that the trial of an accused is conducted and concluded expeditiously, and that the pre-conviction detention of an accused does not extend beyond the period of two years in cases involving an offence punishable with death, or one year in other cases;

(ii)The period of one year or two years, as the case may be, for the conclusion of the trial begins from the date of the detention of the accused in the case, not Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

from the date when the charge is framed and trial commenced;

(iii)A statutory right to be released on bail accrues in favour of the accused if his trial is not concluded within the specified period, i.e., exceeding one year or two years as the case may be, from the date of his detention;

(iv)This statutory right of the accused to be released on bail is, however, subject to two exceptions: one is embodied in the 3rd proviso itself and the second is provided in the 4th proviso, which are: (a) the delay in conclusion of the trial is occasioned by an act or omission of the accused or by any other person acting on his behalf, and (b) the accused is a convicted offender for an offence punishable with death or imprisonment for life, or is in the opinion of the court a hardened, desperate or dangerous criminal, or is accused of an act of terrorism punishable with death or imprisonment for life.

(v)The act or omission on the part of the accused to delay the timely conclusion of the trial must be the result of a visible concerted effort orchestrated by the accused. Merely some adjournments sought by the counsel for the accused cannot be counted as an act or omission on behalf of the accused to delay the conclusion of the trial, unless the adjournments are sought without any sufficient cause on crucial hearings, i.e., the hearings fixed for examination or cross-examination of the prosecution witnesses, or the adjournments are repetitive reflecting a design or pattern to consciously delay the conclusion of the trial; and

(vi)The phrase "a hardened, desperate or dangerous criminal" denotes an accused who is likely to seriously injure and hurt others without caring for the consequences of his violent act and will pose a serious threat to the society if set free on bail. Such tentative finding as to character of the accused must be based upon careful examination of the facts and circumstances of the case, supported by sufficient incriminating material.

In the light of the above principles, we proceed to appreciate the statutory ground of delay in conclusion of the trial pleaded by the counsel for the petitioner, for grant of bail to the petitioner.”

Similarly, scope, extent and applicability of fourth proviso again came up before another Hon’ble Bench of apex Court in another case titled Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

“Allah Wasaya Vs. The State and others” reported as PLD 2022 SC 541, whereby it was held that- “6. The word "criminal" in the phrase "hardened, desperate or dangerous criminal" of the fourth proviso to Section 497(1), Cr.P.C., as held by a five member bench of this Court in Moundar v. State,1 is not to be construed in the technical sense for a person who has been adjudged guilty of a charge in a Court of law, i.e., a convicted person; it has rather been used in its ordinary sense for a person who violates the law of the land and is accused of committing a crime. Further, the fourth proviso to section 497(1), Cr.P.C. deals with the previously convicted offenders separately. Therefore, in order to bring an accused within the compass of a hardened, desperate or dangerous criminal, it is not necessary to prove that he has a previous criminal record of conviction.2 It is thus obvious that the previous criminal record of convictions or of pendency of other criminal cases, though may be taken into consideration as a supporting material, is not an exclusive deciding factor to form an opinion as to whether the accused is a hardened, desperate or dangerous criminal. Such an opinion is to be formed by the court mainly on basis of the facts and circumstances of the case, borne out from the material available on record, wherein the bail is applied on the ground of delay in conclusion of the trial,3 by considering inter alia, the nature of the offence involved,4 its effects on the victims or the society at large,5 the role attributed to the accused,6 the manner in which the offence was committed7 and the conduct of the accused.8 Needless to mention that the formation and recording of such opinion as to the character of the accused, like the opinion as to reasonable grounds for believing his involvement in the commission of the offence, is of tentative nature, and is thus open to re-examination and final determination on conclusion of the trial.

7.The meaning and scope of the phrase "hardened, desperate or dangerous criminal" have also been explained in Shakeel Shah,9 wherein this Court held that the words "hardened, desperate or dangerous" point towards a person who is likely to seriously injure and hurt others without caring for the consequences of his violent act and can pose a serious threat to the society if set free on bail, and such tentative opinion as to the character of the accused is to be formed by the court upon careful examination of the facts and circumstances of the case. We are of the considered view that the court may also refer to any previous criminal record, if available, for forming such opinion but it matters little if the accused does not have a previous criminal record. The very gravity and severity of the act alleged to have been committed by the accused, even though for the first time, may be sufficient to attract the fourth proviso to section 497(1) Cr.P.C. in the peculiar facts and circumstances of a case and may lead the court to form Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

opinion that the accused is a hardened, desperate or a dangerous criminal.”

Likewise, in case titled “Iqbal Brohi v/s The State” reported as 1998 PCr.LJ 2066, Hon’ble Singh High Court had earlier refused bail to the accused on the basis of statutory ground, when his case was covered by the fourth proviso to section 497

(1)Cr.P.C.

In view of the ratio-decidendi expounded in aforesaid judgments of superior Courts, it is settled by now that gravity of offence is to be gathered from facts and circumstances of each and every case, qua applicability of exception provided in 3rd proviso to section 497 Cr.P.C.

8.Without dilating upon merits of subject event, lest it may prejudice case of either party, a bare look of record on the basis of tentative assessment would reveal that present petitioner is charged for an offence, whereby he was alleged to have committed murder of Sultan Ghani and caused firearm injury to his sister-in-law, over a pity issue. Said offence attracts punishment provided U/S 302 PPC, which envisages sustentative punishment of death or life imprisonment, along with compensation, therefore, Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din

case of petitioner falls within prohibitory limb section 497 (1) Cr.P.C.

8.In view of what has been discussed

above, instant bail petition stands dismissed, however, learned trial Court shall expedite trial proceedings and conclude the same within three (03) months positively, upon the receipt of order of this Court.

Announcement Dt: 25.7.2025 Sd/-

JUDGE

Nawab (S.B.) Hon’ble Mr. Justice Salah-ud-Din