' The instant Criminal Misc. Has been moved by the petitioners Mohid and Muhammad Usman alias Zeshan alias Shani for grant of post arrest bail in case FIR 200 dated 15.5.2014 under Sections 336-B, 452/34, 337-A.I), 337-F(i), PPC Police Station, Qilla Dedar Singh, Gujranwala after the dismissal of the same by the Court below.
2. The precise allegation against the petitioners is that they along with their co-accused while trespassing into the house of Bashir Ahmad complainant threw acid on his son Hamza injured PW who was lying on a cot in his house as a result of which he sustained injuries.
3. We have heard the learned counsel for the parties and perused the record.
4. Initially, post arrest bail petition of the petitioners was dismissed by Special Judge Anti-Terrorism vide order dated 19.8.2014. After eleven days of dismissal of their post arrest bail petition, petitioners again moved an application for their post arrest bail before the same Court which was allowed by the same Court (Special Judge Anti-Terrorism Court) vide order dated 8:9.2014.
5. Bashir Ahmad complainant/Respondent No. 2 (real father of Hamza injured PW) moved Criminal Misc. No. 12332-CB of 2014 before this Court for recalling the bail granting order mentioned above which was allowed by this Court vide order dated 26.11.2014 by observing therein as under: "After hearing the learned counsel for the parties and going through the record it has been noticed by us that first post-arrest bail moved by Respondents No. 2 and 3 was dismissed by the learned Special Judge, Anti-Terrorism Court-II, Gujranwala vide order dated 19.8.2014. After 11 days of dismissal of their post-arrest bail Respondents No. 2 and 3 once again move application for the same relief in the selfsame criminal case before the same learned Court on 30.8.2014 who allowed the same vide impugned order dated 8.9.2014. We have gone through the contents of impugned order with great care and caution and noticed that the only ground weighing with the learned trial Court to extend his discretionary relief in favour of Respondents No. 2 and 3 is that their co- accused namely Khalid and Amjad were declared innocent by the investigating officer their names were placed in Column No. 2 of report under Section 173, Cr.P.C. We are afraid that ipsi dixit of police that too regarding co-accused is not binding on Courts of law and the sole findings of the learned Special Judge, Anti-Terrorism Court-II, Gujranwala which are based on police findings are not sufficient to reverse his previous findings extended by him at the time of dismissing of post arrest bail of Respondents No. 2 and 3. We may also deem it imperative to mention here that rule of consistency cannot be based solely upon police findings rather the set of allegation leveled by the complainant in the FIR is also to be considered by applying the same. The learned Special Judge leaving the allegations leveled in the FIR against Respondents No. 2 and 3 have travelled to consider and based reason for extending same discretionary relief which he has already been declined by him Just 11 days before. Even otherwise, the learned Special Judge has reviewed his previous order due to changing circumstances in the case of co-accused whereas there exists no change in the roles of Respondents No. 2 and 3.
3. For what has been discussed above we have come to a definite conclusion that the impugned order dated 8.9.2014 passed by learned Special Judge, Anti-Terrorism Court-II, Gujranwala suffers patent illegality on the face of it which is not sustainable and the same is hereby recalled.
Consequently, this petition is allowed and the post arrest bail allowed to Respondents No. 2 & 3 by virtue of impugned order is hereby withdrawn and recalled."
6. Petitioners moved Criminal Petition No. 1183-L of 2014 before Hon'ble Supreme Court of Pakistan against above mentioned order for grant of bail which was dismissed by Hon'ble Supreme Court of Pakistan on 3.2.2015 as having not been pressed which order is hereby reproduced:-- "learned counsel for the petitioner does not want to press this petition. Dismissed as not pressed".
7. It is important to mention here that on 15.12.2014, learned Special Judge, Anti-Terrorism Court No. II, Gujranwala accepted the application of the present petitioners under Section 23 of ATA; 1997 and sent the case to the Court of ordinary jurisdiction for trial but Writ Petition No. 34275 of 2014 filed by Bashir Ahmad complainant/ Respondent No. 2 against that order was accepted by this Court vide order dated 19.8.2015 by setting aside the order dated 15.12.2014 of Special Judge Anti-terrorism Court-II, Gujranwala for transfer of the case to the Court of ordinary jurisdiction by observing in Para 7 as under: "Therefore, keeping in view the peculiar circumstances of this case and the case law referred above, this writ petition is allowed, the impugned order dated 15.12.2014 passed by the learned Special Judge, Anti-Terrorism Court-II, Gujranwala being not sustainable in the eyes of law is set aside resulting in dismissal of the application moved by the accused/Respondents No. 2 and 3 for transfer of case to the Court of ordinary Jurisdiction. However, the learned trial Court is directed to conclude the trial of the case within a period of four months after the receipt of this order".
8. Learned counsel for the petitioners could not point out any fresh ground. The argument of the learned counsel for the petitioners that petitioners were arrested on 6.8.2014 in the instant case and trial has not been concluded without fault of the petitioners and they are entitled for the relief of post arrest bail on statutory ground has no substance because both the petitioners are accused of an act of terrorism punishable with imprisonment for life under Section 336-B which is a scheduled offence of ATA 1997 and same is hereby reproduced for reference: 336-B: Punishment for hurt by corrosive substance. Whoever causes hurt by corrosive substance shall be punished with imprisonment for life or imprisonment of either description which shall not be less than fourteen years and a minimum fine of one million rupees".
9. Further, it is specifically mentioned in 4th proviso of Section 497 (1) that 3rd proviso for releasing of the accused on expiry of the statutory period shall not apply to a person who is accused of an act of terrorism punishable with death or imprisonment for life, both the above mentioned provisos of Section 497(1) of Cr.P.C. For reference are hereby reproduced: "497(1): (Third) 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 e xceeding 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 a woman exceeding one year and whose trial for such offence has not concluded.
(Fourth) 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 impritnment for life".
10. For the foregoing reasons, this petition has no merits and is dismissed.