' This is a bail application under section 497, Cr.P.C. Filed by three applicants, namely, Shahmir alias Dost Muhammad son of Mir Khan, Abdul Hasan son of Ghulam All and Abdul Ghafoor son of Ghulam Ali who are facing trial under section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with sections 307/34, P.P.C. And 13-D of the Arms Ordinance on an F.I.R. Lodged on 12-7-1988 by one Ahmed Bux. It is stated in the F.I.R. That on the day of the incident the complainant along with his maternal-cousin P.W. Sain Bux were returning from Karundi village to their home. At about 4-00 p.m. When they reached the bridge of Ratar Shakh, they were waylaid by three culprits out of whom two were armed with pistols and one was empty-handed. The said culprits deprived them of the motor-cycle which they were riding on. The culprits also fired at them causing injuries to P.W. Muhammad Bux who reached the spot on hearing the cries of the complainant and his witness. The application for bail was filed by the applicants before the Sessions Court, Khairpur which was heard by learned First Additional Sessions Judge, Khairpur who dismissed it by his order, dated 29-11-1988.
2. Learned counsel for the applicants submits that he presses for bail on the sole grounds of affidavits of Ahmed Bux, complainant, (2) Sain Bux, an eyewitness, (3) Muhammad Bux, injured and
(4) Ahmed Khan the Mashir. In all these affidavits it has been averred that they did not identify the accused to the police as the faces of the culprits were muffled. Mr. S. Zawwar Hussain, learned AA.- G., however, denies the assertion made in the affidavits th the faces of the applicants/accused were muffled. The statements of all these 'lour persons were recorded by the Investigating Officer under section 161, Cr.P.C. Which shows that the police had also appeared at the scene and having encircled the applicants, arrested them on the spot and recovered the motor-cycle from them.
Pistol was also recovered from two applicants. The Investigating Officer was called by me who identified the complainant and the other witnesses.
3. I personally enquired from each of the deponents about the correctness of the affidavits sworn in by them and the averments made therein. They owned their respective affidavits. On being identified by the A.S.I., there seems to be no doubt about their identity.
4. Mr. Ali Aslam Jafferi, learned counsel for the applicants has referred to a case reported as Dinu alias Din Muhammad v. State 1988 P Cr. L J 1362 by a learned Single Judge of this Court who had granted bail to the accused on the basis of the affidavits filed by the eye-witnesses exonerating the accused though implicating him in the earlier statements. Learned counsel also referred to Sanaullah and 3 others v. State 1983 SCMR 15. In that case petitioners sought leave to appeal against the dismissal of their bail application by the High Court for offence under section 148/302/307/324/365/451/149, P.P.C. The F.I.R. Was lodged by one Muhammad Elyas (P.W.) who also suffered as many as 10 injuries during the incident out of which three were incised wounds. The only ground urged by the learned counsel for the petitioner was that the only witness mentioned in the F.I.R., namely, Nasrullah (P.W.) has filed an affidavit that he had not seen the occurrence. Hon'ble Supreme Court dismissed the petition with the observation that 'Even if it be assumed that he had not seen the occurrence it is admitted that Muhammad Ilyas, the complainant in the case, who is also an eye-witness, would support the prosecution case'. Mr. All Aslam Jafferi presses this authority into service on the ground that had the complainant also filed an affidavit in the cited case, the Hon'ble Supreme Court might have granted the bail. He then submitted that in the present case the complainant, two eyewitnesses one of them is an injured person and the Mashir have all filed their affidavits. Mr. Jafferi also submitted at the Bar that there remained no other eyewitness of the incident as per F.I.R.
5. There are a number of other cases decided by the High Courts of Lahore and Sind and also of the Supreme Court. Some of them have been noticed by the learned Additional Sessions Judge and found as distinguishable.
6. The learned Additional Sessions Judge, while giving his reasons for dismissal of the bail application, observed that:- "I have heard the learned defiance Advocate as well as A.P.P. For State and perused the police papers and the affidavits filed by the witnesses who were also summoned by me and examined in person. The witnesses have admitted the contents of affidavits placed on record and have however admitted that as the accused have sought apology therefore, they have got no objection in case they are admitted to bail. Since the accused were apprehended instantly after commission of heinous crime falling under the provision of section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and also the culprits had attempted to murder P.W.
Muhammad Buz by firing effectively with pistol as a result of which he sustained as many as six injuries in order to escape from the police party and public who were escorting them hence such F.I.R. Was promptly registered which factum leave no corner or any mitigating circumstances for admission of the accused on bail. The F.I.R. Specifically discloses the manner in which offence was committed and the recovery was effected from the accused persons. The medical evidence is also positive hence evidence collected by the prosecution cannot be ignored or brushed aside merely on the grounds that the witnesses have sworn affidavits favourable to the accused."
' The learned Judge, further observed that:- "In my humble view this is clear and wild attempt to tamper with the prosecution evidence at very initial stage of the case when it has recently been challenged. The offences of like nature have created very havoc for the general public and in case the act of the accused is lightly countenanced then there will be no end to the commission of such heinous crime."
' The learned Judge thus held that:- ".... In my humble view in the present case there is ample evidence connecting the accused with the commission of heinous offence which is covered by prohibitory clause (1) of of section 497, Cr.P.C.
Irrespective of the affidavits filed by the witnesses favorable to the accused. Accordingly I do not fmd merits in the bail application, till evidence of Investigation Officer and recovery Mashirs is recorded who have not sworn affidavits favourable to the accused. Moreover there is even no suggestion for false implication of accused, hence bail application filed on behalf of accused is hereby rejected?
7. Every case is to be decided on its own merits. In the instant case, no doubt, there are affidavits of the complainant, two injured P.Ws. And the Mashir, which may, ordinarily, call for 'further inquiry', yet, in the instant case, there remain the police officials (P.Ws. 6 to 11) who are alleged to have surrounded the accused on the spot (on the highway), and arrested them in broad daylight, and recovered, at the spot, 2 pistols from two of the accused and the motor-cycle, which the accused are alleged to have robbed from the complainant. It cannot, therefore, be said that all the eye- witnesses have filed their affidavits exonerating! The accused. There also remain unofficial P.Ws. 2 and 4.
8. In the matter of bail, Jagan and others v. The State (Criminal Bail Application No, 636 of 1988) granted by me, on 26-2-1989, as also relied on by the counsel, the facts are distinguishable; firstly, it was a case where incident had taken place in a village, on the field, whereas in the present case the incident has taken place on a highway; secondly, in that case the accused were arrested much after the incident, whereas in the instant case the accused have all been arrested on the spot; and thirdly, in the said case, all the eye-witnesses had sworn in their affidavits, whereas in the instant case there are police officials, who arrested the accused on the spot are also the eye-witnesses; and fourthly, there were no recoveries, as then, in that case, whereas, in the instant case, the pistols alleged to have been fired from five cartridges and the motor-cycle alleged to have been snatched away by the accused have been recovered from them then and there and fifthly, the present case is that of Harabah.
9. There is yet another aspect of the matter. The case before me involves double crime of (i) highway robbery, (ii) coupled with causing injury. Highway robbery has been classified by Islamic penal law as a Hadd, (plural, Hudud), which, in legal terminology, means Allah's 'restrictive ordinances' par excellence.
' The Hadd is a right of Allahor, in other words, the right of Society and, therefore, no pardon or settlement, Sulah is permissible. The punishment of highway robbery is established by the Holy Qur'an. Verses 33 and 34 of Surah Al-Ma'idah, read as under:- {{ARABIC TEXT}} 'The punishment of those who wage war against Allah and His Messenger (by violating public security for the establishment of which the Divine law has come) and go about in the land causing corruption (in terms of robbery and bloodshed) is execution (in case they are guilty of murder), or crucifixion (in case they commit murder and robbery both), or the cutting off of hands and feet from opposite sides (if they commit robbery only) or exile from the land (if the murder or robbery has not yet been committed, but the persons concerned are arrested while on the point of doing so). That is their disgrace in this world, and a heavy punishment awaits them in the Hereafter; except for those who repent before they fall into your power (i,e,, prior to their arrest); in that case, know that Allah is Oft-Forgiving, Most Merciful. (He will condone their guilt in respect of the punishment which is to be received in the Hereafter)."
In the instant case the highway robbery alleged to have been committed in respect of a motor- cycle of the value of Rs,18,000 is not compoundable both under the law in force and the traditional Islamic Law. Even the Head of State cannot pardon the accused of a Hadd punishment, after the accused is brought before the Court for trial, in the Shari'ah.
10. In case, it is proved that accused have snatched away the property and have also caused injury to the person, their one hand and one foot as provided in section 17(3) of Ordinance No,VI of 1979 is to be cut off in Hadd as also stated in Siraj al-Wahhaj . The Arabic text and its Urdu translation reads as under:- {{URDU TEXT}}
11. Thus, the Islamic Law does not take a lenient view of the matter. Moreover, the Courts cannot be oblivious of the Law and Order situation in the country and particularly in the province of Sind, where highway robberies have become order of the day, and the possession and use of unlicensed fire-arms, particularly by our youngsters, has become rampant among the criminals, which should not be tolerated by any civilized society, as it creates unrest and panic among the people of that area.
12. Professor K.O. Shatwell, Dean of the Faculty of Law at the University of Sydney, Australia, deplores 'that crime like the ever rolling stream with which we are all familiar is today not only in danger of overflowing its banks but to some extent has already done so'. (See, his paper on 'Crime and the Punishment of Crime' read at the Third Commonwealth and Empire Law Conference held at Sydney, and reported in the PLD 1966 Lah.
103.
13. Coming to the Holy Qur'an, it may be added that the obligation of punishing the culprits, is not only legal, as in a Secular System, but also moral and even spiritual. It being so, the Qur'an lays great emphasis on preserving the values, which form the basis of Social Order. Softness shown to the criminals generates finally into the adoption of expediency, the condonation of crime and consequent deterioration of moral standard, as it is being witnessed today in our Society.
14. I would, therefore, agree with the order, dated 29-11-1988 of the learned 1st Additional Sessions Judge, Khairpur and dismiss the above bail application. The applicants will, however, be at liberty to move this Court again, if so advised, after the evidence of other eye-witnesses including the police officials is recorded by the learned Trial Judge, who will expedite the hearing of the case, as early as possible.