Crl.P. No. 443-L of 2020 
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I have gone through the order rendered by my learned brothers 
Mr. Justice Manzoor Ahmad Malik and Mr. Justice Syed 
Mansoor Ali Shah. With utmost respect, I do not agree with the 
reasonings recorded, hence, render my own findings. 
SAYYED MAZAHAR ALI AKBAR NAQVI, J.:- The instant case 
bearing FIR No. 64/2016 dated 05.02.2016 offence under 
section 302, 324, 34 PPC read with section 7 Anti-Terrorism 
Act, 1997 registered with police station Samanabad, Lahore is a 
glaring example of atrocious act in a civilized society of 21st 
Century.  The background of said untoward incident is that in 
fact there are two groups of criminals operating within the local 
limits of police station Samanabad, one led by Ch. Saleem while 
the other group is led by Sajid Chaudhary. Both the groups are 
at daggers drawn with each other. On 05.02.2016 at 3.15 p.m. 
two members of Sajid Chaudhary group were found in Rashid 
Amin Chowk, where they were confronted by their opponents. 
As a consequence, both of them were fired upon in the said 
Chowk. Another person from the same group namely Mashooq 
Butt reached there to rescue them but he was also dealt in the 
same manner. Thereafter, members of said group of criminals 
conspired with each to chalk out a plan to tackle with the 
situation. Hence to fulfill their nefarious design, present 
petitioner, co-accused Waqar under the patronage of Ch. Saleem 
entered into nearby street where the house of complainant is 
located. They resorted to reckless firing, one of the fire shot 
made by petitioner with rifle .223 bore hit Bahadar Ali aged 14 
years on his temporal region while co-accused Waqar fired 
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hitting Safdar Ali on his forehead, another minor aged 13 years 
when both brothers were standing in the balcony of their own 
house. The said gruesome act was committed with nefarious 
designs to create a concocted counter-version against the earlier 
incident with ulterior motives. The mode and manner of 
occurrence by the assailant show their inter-se connectivity qua 
their mindset.  After committing the double murder, petitioner 
alongwith others restrained inmates of deceased family inside 
their house on gun point while their house was locked from 
outside. They were threatened not to report the matter to police 
or even to attend their children. The most nasty aspect of this 
case is that after the commission of said offence, Ch. Saleem 
being in league with the local police lodged First Information 
Report as complainant while depicting a false, baseless and 
concocted story by distorting actual facts and circumstances 
Sadaqat Ali real Chacha of both deceased rescued himself from 
the clutches of the accused person, he approached police station 
where he lodged a complaint which was recorded u/s 161 
Cr.P.C. with the intervention of high-ups of police. Due to 
sensational nature of this case it was investigated by senior 
police officers. During the course of investigation the recovery of 
rifle .223 bore was affected from the petitioner which was sent 
to Forensic Science Laboratory. It also matched with the empties 
collected from the place of occurrence. Therefore, report of 
Forensic Science Laboratory is positive in nature. The 
investigation concluded and found the active participation of the 
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petitioner in the above said double murder with a specific role of 
causing firearm injury to one of deceased on temporal region. 
2. 
 
Vide 
order 
dated 
18.05.2020, 
this 
Court 
requisitioned report from the learned trial court. The said report 
bearing No. 55 dated 01.06.2020 is placed before us. The report 
of the trial court is ambiguous on many aspects. The trial court 
has not fixed the responsibility of delay rather a confusing 
picture has been portrayed. Order passed by the learned Single 
Bench of High Court dated 24.02.2020 while dismissing the bail 
application has demonstrated a different picture, which actually 
occasioned for delay in conclusion of trial from the record. 
Admittedly the petitioner was taken into custody on 11.06.2016, 
however, the co-accused escaped from appearance before trial 
court 
one 
after 
the 
other 
on 
27.04.2017, 
16.05.2017, 
15.06.2017, 21.6.2017, 13.09.2017, 23.10.2017, 18.12.2017, 
21.12.2017, 05.01.2018, 15.01.2018 and 24.01.2018. As such 
the accused party practically made it impossible for the trial 
court to frame charge against them. Nevertheless the trial court 
after marking the attendance of all the accused persons framed 
charge on 10.07.2018. The highhandedness of the accused 
party continued even after the framing of charge, the accused 
persons once again while playing the same tactics absented 
themselves  one by one on 06.08.2018, 22.09.2018, 19.10.2018, 
09.11.2018, 19.11.2018, 29.11.2018, 05.12.2018, 11.12.2018, 
24.12.2018, 26.01.2019, 30.01.2019, 07.2.2019, 20.02,2019, 
27.02.2019, 13.03.2019, 26.03.2019, 13.04.2019, 23.04.2019, 
18.05,2019, 29.05.2019, 11.06.2019, 21.08.2019, 07.11.2019, 
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13.11.2019, 30.11.2019, 19.12.2019 and 13.02.2020. The data 
mentioned above speaks volume qua the attitude of the accused 
persons towards Court proceedings. Otherwise, it has now 
become customary that the accused with crude criminal 
mindset deliberately adopt such tricks in order to delay the 
Court proceedings with an intent to exhaust the other party and 
to further avail the benefit of proviso 3 of Section 497(1) Cr.P.C. 
The element of ill design for the purpose of delay of trial is 
floating in abundance in this case. The report of trial court, 
wherein the complainant party was partly held responsible for 
delay is nothing but made beyond the real facts.  
3. 
 
The real cause of non-appearance of complainant 
and PWs before the trial court cannot be attributed to them; as 
it was not intentional; rather they are forced to avoid 
appearance, because they are apprehending serious threats to 
their lives. The complainant has already made several attempts 
in order to seek police protection but all efforts made by the 
complainant proved futile. Even at one stage the police guards 
were 
deployed 
vide 
notification 
dated 
29.08.2016 
but 
unfortunately those were withdrawn due to influence of accused 
party. This very fact was not brought in our notice by the trial 
court. During the course of proceedings before this Court, 
Sadaqat Ali (complainant) was present in person. He was given 
the right of audience. He explained in the Court the reasons in 
detail for non-appearance of complainant and prosecution 
witnesses. He further apprised that he had already moved 
various applications to police hierarchy, even to the Chief 
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Justice, Lahore High Court but all efforts proved fruitless. He 
further informed that lawlessness of the aforesaid groups can be 
gauged from the fact that (364) empties of sophisticated 
weapons were recovered from the spot. This statement of the 
complainant was not controverted by anyone present in the 
Court from either side. Another portion of report that three PWs 
had compromised with the accused person before trial court is 
in fact settlement in between the two groups having no nexus 
with the case of prosecution lodged at the instance of Sadaqat 
Ali complainant. The prosecution version advanced by Sadaqat 
Ali complainant is still intact in all respects. Nevertheless, the 
trial court has assured  this Court that trial can be concluded 
within the shortest possible time subject to the cooperation of 
the parties.  
4. 
 
Another alarming situation has been brought in the 
notice of this Court during record inspection that he police file 
was manipulated by distracting Case Dairies from the original 
record, during court custody. In this regard "Rapt" has already 
been recorded in local police station. This very fact alone is 
sufficient to raise alarm towards the gravity of situation.  
5. 
 
Now 
the 
pivotal 
question 
which 
requires 
determination is whether after the expiry of certain period, 
benefit of proviso 3 of section 497(1) Cr.P.C. could be available 
to the accused in all eventualities or there can be any legal 
restriction imposed by the law. To construe the legal imports of 
law, it is advantageous to reproduce it:- 
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 Section 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 appear 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 ………………………  
 
Provided further that …………..  
 
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 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.  
 
The provisos 3 & 4 of section 497(1) Cr.P.C. are co-existent qua 
their application; hence, the imports of the same cannot be 
constructed in isolation rather to interpret it conjointly. The 
language of proviso 3 of section 497(1) Cr.P.C. demonstrates a 
general principle which is clear, unambiguous in its texture 
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rather it in express terms confers jurisdiction upon the court to 
entertain and extend benefit of proviso 3 of section 497(1) 
Cr.P.C. in the spirit of language of said provision pursuant to 
the intent of the legislature, however, the said concession has 
been controlled while imposing certain restriction while 
introducing proviso 4 of section 497(1) Cr.P.C. The bare perusal 
of proviso 4 of section 497(1) Cr.P.C override to some extent 
proviso 3 of section 497(1) Cr.P.C. by limiting its efficacy by 
placing conditions against the general principle as such it has 
laid an embargo which has to satisfy prior to availing concession 
of proviso 3 of section 497(1) Cr.P.C., resultantly, these are 
practically exceptions to the general principle entails from 
proviso 3 of section 497(1) Cr.P.C. The proviso 4 of section 
497(1) Cr.P.C. envisages distinct legal requisites in relation to its 
applicability.   
 (i). 
That the provision of third proviso of sub-section shall 
not apply to previously convicted offender in an 
offence not punishable with death or imprisonment 
for life.  
 
(ii) 
Or to a person who in the opinion of the court is 
hardened, desperate or dangerous criminal or 
involved in terrorism. 
 
The plane reading of first requisite depicts it to be mandatory in 
nature by virtue of its language which is otherwise clear 
unambiguous transparent in its application. It speaks about 
those weighed down with criminal background. In other words 
any criminal who is previously convicted is out rightly barred 
from the consideration to avail the benefit of proviso 3 of section 
497(1) Cr.P.C. This condition is to apply stricto-sensu in all 
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fairness without compromising it in any manner; hence, all 
those who are stigmatized/tainted with criminal background are 
ousted from consideration. However, the second limb of proviso 
4 of section 497(1) Cr.P.C. is discretionary in its applicability. 
The language itself is self explanatory ensuing the intent of said 
provision. While introducing this limb of said provision the 
legislature has empowered the court to form an opinion qua the 
person involved in a criminal case if brought forth while taking 
into consideration the act, mode and manner of occurrence and 
other existing circumstances placed before the court without 
being prejudiced by any previous record. The Court while 
forming opinion about the criminal declaration has to satisfy all 
norms of legal aspects so that opinion made should not 
frustrate any ethics of decency and fairness to meet the ends of 
justice. The opinion of the court should meet all legal justiciable 
requirements demanded by the law in the interest of safe 
administration of criminal justice. 
6. 
 
The instant case exclusively relates to second limb of 
the proviso 4 of section 497(1) Cr.P.C. Although there is no 
denial that this group is involved in eight other criminal cases of 
serious nature but even if this aspect is kept-a-aside the 
heinousness of the act committed by the petitioner in the 
present case when evaluated/scrutinized in its entirety, it is 
loaded with overwhelming material available on the record 
which connects the petitioner as main perpetrator of double 
murder case. Thus no other opinion can be formed in this case 
except that the petitioner while joining hands with others had 
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committed 
a 
gruesome 
act 
of 
double 
murder. 
Hence, 
accumulative effect of the entire discussion leads towards one 
and the only opinion in the mind of the Court, which brings him 
in the category of hardened, desperate and dangerous criminal 
as stipulated under proviso 4 of section 497(1) Cr.P.C. The 
findings recorded by this Court was subject matter of an earlier 
case, which was dealt by a Single Bench of Sindh High Court in 
a salutary judgment titled "MUHAMMAD HANIF versus THE 
STATE" (PLD 1986 Karachi 437) in which it was enunciated by 
the learned Court that even in the absence of previous record, 
an accused can be declared hardened, desperate or dangerous 
criminal subject to act, mode and manner of occurrence in that 
very case. A number of judgments with divergent view were in 
fields from other Courts, hence to resolve this controversy leave 
to appeal was granted to pronounce an authoritative judgment 
on the subject, even it was considered a case of first impression 
before this Court, Therefore, in the  case  titled "MOUNDER and 
others versus THE STATE" (1988 SCMR 1113). A larger Bench 
of five Hon'ble Members was constituted which approved the 
judgment of Singh High Court mentioned above in the case 
"MOUNDAR and others vs. THE STATE" (PLD 1990 Supreme 
Court 934). Relevant at p/939 reproduced:- 
 
"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 
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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 Karp.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 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 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". 
 
7. 
 
As a consequence of the facts and circumstances, 
the law on the subject, this Court has no hesitation to conclude 
that the allegation levelled against the petitioner regarding 
commission of such a heinous offence squarely comes with the 
ambit of a hardened, desperate and dangerous criminal, hence, 
he is not entitled to avail the benefit of proviso 3 of section 497 
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(1) Cr.P.C. Therefore, I do not find any force in the said petition 
which is hereby dismissed. Leave to appeal is declined. 
 
Judge 
Lahore 
24.06.2020 
Approved for reporting. 
'Athar' 
