1. Nadeem Azhar Siddiqui, J.--The applicants are facing trial in Crime No. 13 of 2006 of Police Station Thull under Sections 365-A. 392, 342, 348, 149, P.P.C. read with Section 7, Anti-Terrorism Act, 1997. The allegations in the F.I.R. are that on 6-2-2006 six persons having K K. in their hands riding on two motorcycles out of whom two were with muffled faces, four with open faces, forcibly took Barkat All with them by saying that he will be released after payments of Rs. 4,00,000 as ransom and also threatened not to lodge any case.
2. The applicants first filed an application under Section 561-A, Cr.P.C. for quashment of the proceedings which was dismissed on 28-7- 2006 with the following observation: "In view of the above, the instant criminal miscellaneous application has no merit which is accordingly dismissed. However, applicant may approach trial Court for the purpose of obtaining bail or may file proper application under Section 265-K, Cr.P.C. after examination of the complainant and abductee."
3. The applicants then obtained protective bail from this Court and filed an application for bail before arrest before the trial Court. The trial Court, at the first instance, granted interim pre-arrest bail to the applicants but did not confirm the same and vide order dated 22-8-2006 dismissed their pre- arrest bail application on the ground that no case has been made out as abductee Barkat Ali returned after paying ransom and his 164, Cr.P.C. statement, recorded even after 7 days, carries weight as he might be in fear from those who abducted him or may be under shock of abduction of paying ransom.
4. After dismissal of the pre-arrest bail application, the applicants filed after arrest bail before trial Court which was rejected on 22-9-2006. The reasons recorded by the trial Court for dismissal of the application are that although there is a difference between bail before arrest and bail after arrest and it will not be proper for the Court to admit accused to bail in view of orders dated 22-8-2006, which are self-explanatory and nothing forceful or convincing arguments have been made to grant concession of bail to accused after rejection of pre-arrest bail.
5. Mr. Rasool Bux Palejo, learned counsel -for the applicant has contended that the F.I.R. was lodged after unexplained delay of two days. There is enmity between the parties and false implication of the applicants, who are otherwise respectable and educated persons, cannot be ruled out. He further submits that the complainant party and the applicants are residents of same locality and have also related to each other and their names are not appearing in the F.I.R. and were subsequently implicated by way of 164, Cr.P.C. Statement of the abductee and further statements of P.Ws. Learned counsel further contends that the names of the applicants were placed by the police in column 2 of the challan and issuance of non-bailable warrants against the applicants are not warranted under the law. Learned counsel further submitted that the police has let off the applicants on consideration of sufficient material available with them in the shape of statements of respectable persons. He submits that case of further inquiry has been made out and the applicants are entitled to the concession of bail.
6. Mr. Muhammad Ismail Bhutto, learned State counsel, has opposed the grant of bail and submits that P.Ws. have clearly supported the case of prosecution by giving names of applicants in their further statements. He further submits that the abductee has also taken the name of the applicants in his 164, Cr.P.C. statement.
7. Mr. Ali Nawaz Ghanghro, learned counsel for the complainant has also opposed the grant of bail on the ground that this bail application is premature .as High Court in its earlier order dated 28-7- 2006 has observed that the applicants can file bail application after examination of the complainant and abductee and till to date the complainant and abductee have not been examined. He further submits that in view of the statement of abductee under Section 164, Cr.P.C. and further statements of the P.Ws. a case falling under the prohibitory clause of Section 497, Cr.P.C. has been made out. He further submits that a short delay in lodging the F.I.R. has been explained in the F.I.R. and mere delay in lodging the F.I.R. is not sufficient to enlarge the applicants on bail in presence of sufficient material available on record connecting the applicants with the offence.
8. We have heard learned counsel for the parties and perused the record made available before us.
9. While lodging the F.I.R. the complainant has not given any name in the F.I.R. and has only, stated that unknown persons have abducted Barkat Ali. Barkat Ali was released on 12-4-2006 and his 164, Cr.P.C. statement was recorded on 19-4-2006 when for the first time he disclosed the names of applicants and other accused persons.
10. 'Thereafter, on 20-4-2006 further statements of P.Ws. Dur Muhammad and Attaullah were recorded in which they have disclosed names of applicants and other accused persons. It appears to be strange that the complainant party and accused party are residents of the same area and seems to be inimical to each other but at the first instance the complainant party has not given the names of the applicants and other accused persons. It is also strange that all- of a sudden while recording their further statements, the P.Ws. have disclosed the names of the applicants and other persons without disclosing the source of their information regarding the names of applicants and other accused persons. The names of the applicants are not appearing in the F.I.R. and keeping in view that the applicants appear to be educated and respectable persons and they have surrendered themselves before process of law and except the present case are not involved in any other criminal activity. Furthermore, names of the applicants were placed in column 2 of the challan by the police on the basis of statements of respectable persons of the locality. Sufficient weight to be attached to result of Investigating Officer as held by Honourable Supreme Court in the case of Ghulam Rasool v. The State 1982 SCM R 440. Keeping in view the statements, it cannot be said that the police have let off the applicants without any cause and reason. It is true, that the opinion of the police is not binding upon the Court and the Court after scrutiny of the material available before it can join the accused persons to face Prosecution and the Court can issue summons for the joining accused. The issuance of non-bailable warrants at the first instance are not warranted under the law and the Court should avoid to take such a harsh action against those persons who were let off by the police. In an unreported case titled as Shah Murad v. The State Criminal Petition No. 105-K of 2002, Honourable Supreme Court has observed as under:-- "There is, however, a grievance of the petitioners that in the first instance, it would always be proper and fair to issue summons or at best bailable warrants in order to secure the attendance of the petitioners who were not sent up. It would only be expedient to issue coercive process if the petitioners had disobeyed the summons or avoided to appear despite the execution of bailable warrants. The course adopted by the trial. Court to say the least in the circumstances appears to be harsh."
11. In another case reported as Muhammad Mumtaz and 3 others v. The State 1988 SCM R 1452, the Honourable Supreme Court has held as under:-- "In the light of the arguments advanced we agree with the learned counsel for the appellants that there are aforesaid three infirmities in the impugned orders of the learned single Judge of the Lahore High Court, Lahore in this case. Both the sets of the appellants in the course of the investigation had been found innocent by the police and their names have been placed in column No.2. In these circumstances, bail should not have been refused to them on the grounds recorded by the learned single Judge, in the impugned orders."
12. The contention of Mr. Ghanghro, that application is premature, has no force. The restriction available in the order dated 28-7-2006 is in respect of application under Section 265-K, Cr.P.C. and not in respect of bail application.
13. In view of the fact that at the first instance the names of the applicants were not disclosed at the time of lodging the F.I.R. coupled with the fact that the F.I.R. was lodged with unexplained delay of two days, and the police has let off applicants by placing their names in the column No. 2 of the challan, a case cf further inquiry has been made out and it cannot be said that there are reasonable grounds for believing that the applicants have committed an offence falling under prohibitory clause of Section 497, Cr.P.C.
14. The bail application is allowed. The applicants be released on their furnishing solvent surety in the sum of Rs. 1,00,000 each and personal bond in the like amount to the satisfaction of trial Court.
15. It may be observed that in case the applicants are found misusing the concession of bail, learned trial Court can take appropriate action against them in accordance with the law.