FAHEEM AHMED SIDDIQUI, J. The applicant is seeking post-arrest bail in a case registered against him at Police Station Ranipur by lodgment of FIR No. 141/2015 under sections 302, 324, 148, 149, 109, 404, 427 read with Section 7 Anti-Terrorism Act, 1997. Earlier, the applicant has tried to get similar relief from the trial Court but could not succeed.
2. As per FIR, the allegations against the applicant are that he along with the other nominated or unknown but identifiable co-accused persons attacked upon the complainant party while they were visiting the workers of their political party at a polling station on the day of the election of local bodies. Allegedly, the applicant belongs to the Pakistan People's Party while the complainant is partisan with Pakistan Muslim League (Functional). In the incident, the attackers used lethal weapons of different caliber while the applicant was shown armed with .12 bore gun. In the said. incident 12 persons lost their lives while several received injuries.
3. We have heard the valued submissions of the learned members of the bar appearing for the respective parties. We have also scanned the available records with their able assistance provided during the course of arguments.
4. Mr. Nusrat Ali Shar, learned counsel for the applicant, has preferred his submissions at length. The gist of his arguments is that the applicant is entitled to bail on the ground of statutory delay as he is confined for last more than 4 years without any progress. The FIR was lodged with delay. There are teaming numbers of witnesses as such no chance of conclusion of trial shortly. There are only general allegations and the mere presence of the applicant with a gun while no recovery was effected from him. Co-accused Sikandar, Basheer, Urs, and Zahid got bail and the applicant is having the same role. There are teaming numbers of accused, as such misidentification cannot be ruled out. There are so many adjournments sought by other accused and complainant. He relies upon the cases of Abdullah v. The State and another (1985 SCMR 1509), Shoukat Ali v. Ghulam Abbass and others (1998 SCMR 228), Tanveer Shahid v. Shoukat Ali and another (2000 SCMR 501), Malik Muhammad Ishaque v. The State (2011 SCMR 1350), Muhammad Afzal Butt alias APHI v. The State and others (2015 SCMR 1696), Imtiaz Ahmed v. The State through Special Prosecutor ANF (2017 SCMR 1194), Muhammad Azeem v. The State and others (2020 SCMR 458) and Ali Akber v. The State and others (2020 SCMR 1225).
5. Mr. Irshad Hussain Dharejo, learned counsel for the complainant, opposed this bail plea.
Concisely, his arguments are that the applicant is not entitled to bail on statutory delay as he is responsible for the act of terrorism. He remained absconder for some-time and did not voluntarily surrender for trial. He is responsible for a heinous offence in which 12 persons including some policemen lost their lives while several received injuries. The case of the applicant is distinguishing from those whom bail was granted.
6. Mr. Shafi Muhammad Mehar, the learned D.P.G., adopted the arguments advanced by Mr. Dharejo. In addition, he contends that the delay is properly explained.
7. The alleged incident took place on the day of the election when the complainant, his local leadership, and other party workers were on a routine election expedition to see other party workers are different polling stations. It has happened just after the visit of a polling station when the nominated and identifiable accused persons attacked upon the complainant party with lethal weapons. The complainant has named the present applicant with a specific role assigned to him for using his gun during the episode. In the said incident, 11 persons have lost their lives on the spot while one succumbed to his injuries during treatment in a hospital. Some other persons also received injuries and it is worth noting that some of the fatalities were caused when they were still in their vehicles. It appears from the contents of FIR that some policemen were available with the complainant party to provide them protection. It appears that the attackers came to the scene of the incident with such planning that even the policemen available with the complainant party could not retaliate and they also lost their lives in the incident. After the incident, the applicant remained fugitive to law and trial and he did not voluntarily surrender and when the allegation levelled against the applicant is viewed in the backdrop of his fugitiveness, it becomes evident that he is a desperate criminal, who has taken part in the alleged incident without any personal motive.
8. In the present case, the accused persons have engaged different advocates and on certain dates, some of the advocates remained not in attendance. So far as to delay in trial is concerned, we are of the view that for deciding whether the accused occasioned delay in the trial, it is not necessary to count and consider the entire docket and segregate such dates to calculate the days of delay with mathematical precession. The overall act and conduct of the accused, persons to frustrate trial through a planned and predetermined scheme are sufficient to divest them.
Although, the statute has given a right under the Third Proviso of Section 497(1) of Cr.P.C.; but the Fourth Proviso is a controlling proviso, which prevents from pervasive misuse by zealous judicial vigilance at the time of extending benefit under the Third Proviso by using a frightening expression as "desperate or dangerous criminal". The term desperate itself is meaningful. Firing upon the opponent on the day of the election with an intention to kill the rivals and to prevent the general public to use their right of franchise is definitely an act of terrorism. Besides, the applicant and his. buddies are desperate in the sense that they are extremely rash and act without any regard for the consequences of their actions. Any person who comes out in such a state of mind that he readily resorts to causing serious injuries and killing those who are opposing their political views and ideas is certainly a person desperate and dangerous to the community.
9. We are of the view that it will make no room for any advantage for the applicant that he was not previously convicted and has never been involved in any criminal case. In the case of Sher Ali alias Sheri v. The State (1998 SCMR 190), the Hon'ble Supreme Court has held that:- "We are in respectful agreement with the above enunciation of law. We are also inclined to hold that in order to bring an accused person within the compass of a hardened, desperate or dangerous criminal, it is not necessary to prove that he had been previously convicted for the reason that previously convicted persons are separately dealt with in the above fourth proviso as is evident. It must, therefore, follow that if the prosecution places on record sufficient material before the Court to indicate that on the basis of tentative assessment the accused persons involved can be treated as a hardened, desperate or dangerous criminal or a person involved in terrorism, the bail on the ground of statutory delay can be denied."
10. Ergo, keeping in view of the above annotations, we are confident to hold that the applicant is not entitled for bail as such his bail plea was declined by our short order dated 19-01-2021 and these are the reasons for the same.