' RAHMAT HUSSAIN JAFFERI, J.--- The applicants are in custody in Crime No.71 of 2004 under section 365-A, P.P.C. Read with section 7 of Anti-Terrorism Act, 1997 of Police Station Sher Shah. The F.I.R. Of the crime was lodged by the complainant Muhammad Ashraf on 19-5-2004 at 11-00 p.m. Alleging therein that few days before the lodging of the F.I.R., his in-laws had called his wife Mst. Fatima and his children for Quran Khawani in their house situated in Khan Building Paracha Chowk Sher Shah, in which the brothers of his wife, the applicant Aziziullah and accused Rahimullah (now dead), Kalimulah, Habibullah, Naeemullah and Hamidullah were also residing. The wife and children of the complainant were detained, therefore, the complainant made request for their return but the accused refused to do so. On 13-5-2004, as per demand of the brothers of Mst. Fatima, the complainant paid Rs.5 Lacs. On 15-5-2004, the brothers of complainant, namely Muhammad Iqbal, Muhammad Pervez, Muhammad Yousif, Muhammad Naeem, Muhammad Saleem, and his daughter Mst. Sadaf along with her children went to bring back the wife and children of the complainant. The applicant Azizullah and his brothers sent back P.W. Muhammad Naeem directing him to send the complainant and Sarwar whereas the remaining persons were detained. On 16-5- 2004. Muhammad Akbar, the elder brother of the complainant, went to the accused to negotiate the matter, but the accused persons also detained , him. Thereafter negotiations started between the applicant Azizullah and his brothers with the complainant on mobile phone of one of the detained persons. On 19-5-2004 during discussion on phone the accused demanded Rs.15 Lacs from the complainant for the release of the detained persons and threatened him that in case he informed the police he would receive the dead bodies of the detained persons. The detained brothers of the complainant were allowed to talk to the complainant on phone, who requested the complainant to pay the amount in order to save them. The complainant became dejected, therefore, he lodged the F.I.R.
2. On 23-5-2004 during further negotiations, the applicant Azizullah agreed to appear at the office of TPO Site along with two detained persons namely Muhammad Akbar and Muhammad Iqbal. The complainant and police reached there and arrested the applicant Azizullah and secured both the detained persons. In the night in between 23rd and 24th May, 2004. The S.-I., Muhammad Hanif Gujar secured Mst. Sadaf and her two children from the house of the applicant Azizullah and his brothers. On 24-5-2004, S.H.O. Police Station Sher Shah informed the Investigating Officer that accused Rahimullah was admitted in Agha Khan Hospital as a case of bullet injury. The police, complainant and P.W. Muhammad Iqbal went there and identified the accused Rahimullah who was lying dead. The applicant Dawood was arrested on the pointation of the P.W. Muhammad Iqbal as he was present there in a Taxi. On 29-5-2004, the witnesses identified the applicants in the identification test held before a Magistrate. The police recorded the statements of the detained persons except the wife and children of the complainant who were first, allegedly detained by the accused. After completing the investigation, the police challaned the applicants in the Court. The other accused persons were shown as absconders in the challan.
3. The applicants moved a bail application before the trial Court but the same was dismissed, hence the present application.
4. We have heard the Advocates for the applicants, complainant, A.A.-G. For the State and perused the record of this case very carefully.
5. The learned Advocate for the applicants has stated that the ingredients of section 365-A, P.P.C.
Are not attracted as there is no allegation of abduction; that the four victims namely Mst. Fatima, her daughters Mst. Maliha, Mst Quartul Ain and her son Muhammad Tahir Shahzada sworn affidavits exonerating the applicants; that through their affidavits the case has become doubtful; that there is a family dispute between the applicants and the complainant, who are closely related to each other; that in order to settle the family dispute the complainant has filed the false F.I.R. And that it is not a case of terrorism.
6. On the other hand the learned Advocate for the complainant has stated that four victims whose affidavits have been filed by the applicants had sworn their affidavits due to pressure of the applicants during their captivity; that the three victims namely Mst. Maliha, Mst. Quratual Ain and Muhammad Tahir Shehzada after their release, have sworn affidavits in which they have supported the prosecution case and further added that their earlier affidavits were obtained under duress; that there is relationship between the parties; that the applicants had taken the law in their hands who have committed the offences punishable under sections 365-A, P.P.C. And 7 of Anti-Terrorism Act, 1997; that the other six abductees have fully supported the prosecution case, therefore, the applicants are not entitled to the concession of bail.
7. The learned Assistant Advocate General has stated that all the detained persons have fully supported the prosecution case and from their evidence the involvement of the applicants has been made out; that whether the offence falls under Terrorism or not is sub judice before the Hon'ble Supreme Court of Pakistan as the question of jurisdiction of the Anti-Terrorism Court has been challenged before the apex Court in an appeal filed by the applicants. He has further stated that the case has been made out against the applicants, therefore, they are not entitled to the concession of bail.
8. We have given due consideration to the arguments and have gone through the material available on the record.
9. Before we discuss the factual aspects of the case it will be advantageous to examine the principle of grant of bail. The Hon'ble Supreme Court of Pakistan in the case of Government of Sindh v. Raeesa Farooq, 1994 SCM R 1283, at page 1295 has observed as under:-- "A Court considering a bail application has to tentatively look to the facts and circumstances of the case and once it comes to the conclusion that no reasonable ground exists for believing that the accused has committed a non-bailable offence, it has the discretion to release the accused on bail. In order to ascertain whether reasonable grounds exist or not, the Court should not piobe into the merit of the case, but restrict itself to the material placed before it by the prosecution to see whether some tangible evidence is available against the accused which if left unrebutted, may lead to inference of guilt. Mere accusation of non-bailable offence would not be sufficient to disentitle an accused from being bailed out. There should be reasonable grounds as distinguished from mere allegations of suspicion. As observed in Ch. Abdul Malik v. The State (PLD 1968 SC 349), however strong the suspicion may be, it would not take the place of reasonable ground. The words 'reasonable grounds' are words of higher import and significance than the word `suspicion'. It is. For the prosecution to show reasonable grounds to believe that the accused has committed the crime.
If the Court is not satisfied with the material placed before it that there exist reasonable grounds to believe that the accused is guilty, then Court has the discretion to grant bail."
10. Keeping in view the above principle, we have examined the case of the prosecution in the light of the evidence collected by the Investigation Officer. From the evidence it appears that the case is in respect of six detained persons namely Muhammad Akbar, Muhammad Iqbal, Muhammad Pervez, Muhammad Saleem, Muhammad Yousif and Mst. Sadaf with her children who went to the house of the accused to get back the wife and children of the complainant. The Police recorded their statements under section 161, Cr.P.C. They have fully supported the prosecution case. From their evidence the case of hostage taking appears to have been made out. Two persons namely Muhammad Akbar and Muhammad Iqbal were secured when the applicant Azizullah brought them at the office of TPO from where the applicant Azizullah was arrested. In between the night of 23rd and 24th May, 2004, the S.-I., Muhammad Hanif secured Mst. Sadaf and her two children from the house of the applicant Azizullah, P.Ws. Muhammad Saleem, Mst. Sadaf, Muhammad Yousif, Muhammad Akbar, Muhammad Pervez have also specifically involved the applicant Dawood in their section 161, Cr.P.C. Statements. Thus, there is sufficient evidence against the applicants to connect them with the crime. It further appears that the main ingredients of section 365-A, P.P.C.
Are not attracted. However, this point can be thrashed out at the time of trial.
11. The police did not record the statements of Mst. Fatima and her children who were first detained by the accused. However, the applicants have filed affidavits of said four victims namely Fatima, Maliha, Quratual Ain and Muhammad Tahir which were sworn after 26 days of the F.I.R. On 15-6- 2004. In their affidavits they have exonerated the applicants. Out of the above four victims the Advocate for the complainant has failed affidavits of three victims namely Mst. Quratul Ain, Mst.
Maliha and Muhammad Tal it Shahzada. In their affidavits, they have supported the case. They have further stated that the earlier affidavits were obtained from them under duress. However, the question as to which facts are correct cannot be answered at this stage because only tentative assessm ent can be made from the evidence available on the record. The statements of these four victims are not available in the police file because the Investigating Officer had not recorded their statements under section 161, Cr.P.C. Nevertheless, apart from the above affidavits, still there is evidence of six hostages who have fully supported the case and implicated the applicants with the commission of this crime.
12. The Hon'ble Supreme Court of Pakistan has considered the aspect of filing affidavits by the P.Ws.
At the bail stage in a case of Naseer Ahmed v. State PLD 1997 SC 347, at page 350 it has been observed as under:-- "At the time of hearing of bail application Court is supposed to do tentative assessment of the material available on the record, which is different from final appraisement and evaluation of evidence which is to be done by the trial Court which has to record evidence of witnesses. A trend has developed nowadays that eye-witnesses some times take a somersault and give statements which are different from prosecution case and some times file affidavits also at the stage of hearing of bail applications of accused persons with intention of creating doubt in the case of prosecution to enable the accused to get bail. The Courts have to be very careful in such cases and see that bail applications are disposed of strictly according to law on merits keeping in view the distinction between tentative assessment and actual evaluation of evidence by the trial Court.
It is the mind of the Court which is to be satisfied where about-turn of some eye-witnesses in the manner stated above shakes up the whole prosecution case from the point of view of credibility of the remaining inaterial. In that respect each case is to be decided on its own merits. In the instant case we are of the view that there is sufficient material on the record which satisfies the mind of the Court to the effect that it is case of not only Lalkara but the petitioner had come armed with a pistol and had fired and the motive is mentioned in the F.I.R. Against him and there is positive report of the Ballistic Expert that the five crime/empties were fired from the pistol which was recovered from the petitioner and the fact that he was arrested after a delay of twenty-three days."
13. In the present case, apart from affidavits, there is evidence of hostages who have supported the case and implicated the applicants with the crime. There is evidence of securing two hostages who were brought by the applicant Azizullah at the office of TPO. There is also evidence of recovery of hostages Mst. Sadaf and her children from the house of the applicant Azizullah. Further, the prosecution have not shown the persons who have filed their affidavits as their witnesses in the challan. At the most they can be treated as defence witnesses, which the applicants can examine at the trial in their defence, if they intend to do so and permissible under the law.
14. From the facts and evidence available on the record the offence of hostage taking appears to be made out which is punishable with death or imprisonment for life. As such, it falls within the prohibitory clause of proviso to section 21-D(2) of Anti-Terrorism Act, 1997.
15. As regards the motive of dispute between the parties over family affairs, it is an admitted position that the parties are closely related to each other. There appears a family dispute between the parties. The question of said dispute having nexus with the Anti-Terrorism Act, 1997 is sub judice before the Hon'ble Supreme Court of Pakistan, therefore, the said question cannot be examined at this stage.
16. From the evidence collected by the prosecution, we are of the considered view that there are reasonable grounds for believing that the applicants are involved in the case. Therefore they are not entitled to the concession of bail. The application is dismissed.