1991 P Cr. L J 734

1991 P Cr.
L J 734
[Karachi]
Before Abdul Rasool Agha, J
MUMTAZ ALI---Applicant
Versus
THE STATE---Respondent
Criminal Bail Application No.21 and Miscellaneous Application No.26 of 1991, decided on 22nd
January 1991.
(a) Criminal Procedure Code (V of 1898)
----S. 497(1), fourth proviso---Impression that a person was a desperate and dangerous criminal was
a personal attribute---Important considerations for arriving at such tentative opinion by Court stated.
Person desperate and dangerous is personal attribute and the important consideration in arriving at
such opinion, which is of course in the nature of tentative opinion in this behalf, Court takes
following factors into consideration:
(i) nature of accusation and conduct of accused at the time of alleged incident
(ii) previous record of the accused which may include his earlier prosecution,
(iii) the material before the trial Court and with the Investigating Agency and also the reports
of police and jail authorities.
It is the cumulative effect of all these aspects by which the Court can determine such tentative
opinion in this behalf.
(b) Criminal Procedure Code (V of 1898)
----S. 497(1), third proviso---Offences Against Property (Enforcement of Hudood) Ordinance (VI of
1979), S.17 (3)---Bail, grant of---Robbed property had been secured from accused---Identification
test was held in presence of Magistrate---Accused appeared. to be a habitual offender being
involved in a similar case---Benefit of third proviso to S. 497(1), Cr.P.C. was not extended to
accused in circumstances and bail was consequently refused to him.
Muhammad Saleh G. Memon for Applicant.
Fazal Hussain Shah for the State
ORDER
Granted subject to all fair and legal exceptions.
2. This is an application for bail filed on behalf of one Mumtaz Ali son of Allahdad seeking bail in
Crime No.145/86 registered on 19-5-1986 at Police Station Artillery Indian, Karachi under section
17(3) of Offences Against Property (E.O.H.), 1979.
The bail application was also made previously and I had dealt with the same and subsequently the
applicant had gone to Supreme Court but could not succeed, hence he has repeated the application
again before me.
I have heard Mr. Muhammad Saleh G. Memon on behalf of the applicant and Mr. Fazal Hussain
Shah on behalf of A: G. for the State. The learned counsel for the applicant has pressed the
application on more or less similar grounds, the main ground being the inordinate delay in the
disposal of the case. At the outset I would like to mention that there is no exceptional ground taken
by learned counsel, which could persuade me to change my previous view formed by me in the
earlier bail application.
Mr. Fazal Hussain Shah, learned State counsel has opposed the grant of bail. He has contended that
the offence committed by the applicant is of serious nature. He further stated that from the record it
is clear that the applicant is facing similar charge for the similar offence registered at the same
police station. Mr. Saleh G. Memon has emphatically urged that a very long period has passed away
and there is no progress in the trial, hence the benefit of proviso (3) to section 497, Cr. P:C: should
be given to the applicant.
The legislature has qualified this proviso (3) with the fourth proviso subsequently added in the year
1983 to the following effect:
"Provided further that the provisions of the third proviso shall not apply to a previously
convicted offender or a person who, in the opinion of the Court, is hardened, desperate or
dangerous criminal."
Mr. Fazal Hussain Shah, the learned State counsel has made a statement that the applicant was
arrested for the similar offence by the same police station and that case is pending against him. This
statement,, has not been controverted by Mr. Memon. In my view person desperate and dangerous is
personal attribute and the important consideration. in arriving at such opinion, which is of course in
the nature of tentative opinion in this behalf, Court takes following factors into consideration:--
(i) nature of accusation and conduct of accused at the time of .alleged incident,
(ii) previous record of the accused which may include his earlier prosecution,
(iii) the material before the trial Court and with the Investigating Agency and also the reports
of police and jail authorities.
It is the cumulative effect of all these aspects by which the Court can determine such tentative
opinion in this behalf. In the instant case there is sufficient l evidence against the accused. The
robbed property has been secured from him' and identification test in presence of Magistrate is held
and he appears to be a habitual offender being involved in similar case. In the facts and
circumstances of the case, I do not feel persuaded to extend the benefit of proviso (3) to section 497,
Cr.P.C. and according to me the applicant does not qualify for the grant of bail in view of the above
legal and factual position.
Consequently Bail Application No.21 of 1991 is dismissed. However, I may mention that the
observations made by me in the above order are only for the purpose of disposal of this bail
application and shall not be serious taken into consideration by the trial Court.
N.H.Q./M-1354/K Bail refused.

1991 P Cr. L J 734

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1991 P Cr.

Before Abdul Rasool Agha, J

(a) Criminal Procedure Code (V of 1898)

(b) Criminal Procedure Code (V of 1898)

Muhammad Saleh G. Memon for Applicant.

Fazal Hussain Shah for the State

Granted subject to all fair and legal exceptions.

N.H.Q./M-1354/K Bail refused.

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