SYED DEEDAR HUSSAIN SHAH, J. - The applicant seeks bail in police Crime No.45/93 for an offence under Section 302 Q & D Ordinance, lodged with P.S. Jauharabad, Karachi.
2. The accused/applicant is facing trial in Sessions Case No. 229/93 before the III Additional Sessions Judge, Karachi Central. Bail application on behalf of the applicant was moved before the learned lower Court but the same was rejected on 23.7.1996. Hence the applicant has approached this Court through this bail application.
3. Mr. Sardar Muhammad Ishaque,, learned counsel for the applicant, contends that the applicant is in custody since 29-6-1993 and even after lapse of three years and three months there is no progress in the matter; the delay whatsoever occasioned is not attributed to the applicant; that neither previous conviction is alleged by the prosecution against the applicant nor any material is produced by the prosecution, from which it can be gathered that the applicant is hardened, desperate or dangerous criminal.
4. Mr. Habib Ahmed, Advocate, for A.G. For State, does not controvert the contention of the learned counsel for the applicant so far it relates to delay in conclusion of the matter by the trial Court but he opposes the bail application in view of the contents of 4th proviso of Section 497(1) Cr.P.C., which reads as follows:- "Provided further that the provisions of the third proviso to this Sub-section shall not apply to 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 involved in terrorism."
According to the learned counsel for A.G. The accused/applicant is involved in terrorism. As such he is not entitled to be released on bail.
5. Mr. Sardar Muhammad Ishaque, learned counsel for the applicant has referred the following case law:-
(1) 1993 SCMR 525 Case of Jalal Vs. Allah Yar.
(2) PLD 1995 S.C. 49 Case of Zahid Hussain Shah Vs. The State.
(3) PLD 1991 Peshawar 174 Case of Sultan Pervaiz Vs. The State.
(4) 1988 SCMR 1116 Case of Allah Ditta Vs. Mian Muhammad Anwar and others.
(5) 1988 SCMR 1113 Case of Mounder and others Vs. The State.
(6) PLD 1986 Karachi 437 Case of Muhammad Hanif Vs. The State.
(7) 1996 PSC (Crl.) 305 Case of Muhammad Rafique Vs. The State; and
(8) 1996 PSC(Crl.) 328 Case of Muhammad Rafique Vs. The State.
Mr. Sardar Muhammad Ishaque has further contended that the amendment referred by the learned counsel for the State, was introduced by Act XIX of 1994 and the Hon'ble Supreme Court and other superior Courts have considered this amendment and have , granted several bail applications, mostly in the case decided in 1995 and 1996.
4. I have perused the material placed with the case and I have also gone through the amendment, referred by Mr. Habib Ahmed, advocate for A.G. For State and the case law cited by Mr. Sardar Muhammad Ishaque. The learned trial Judge in his order dated 23.7.1996 has mentioned six cases, showing applicant's involvement, which include FIR No.45/93 of the present case at S. No.2, whereas at S. No.5 and 6 FIR No.351/93 is shown twice. It is very strange enough to note that in FIR viz No.351/93 for an offence under Section 13-E Ordinance the accused stands acquitted in Case No.265/93 by the Judicial Magistrate, Karachi Central on 9-1-1995. Mr. Sardar Muhammad Ishaque, has stated at the bar that case at S. No.4 i.e. FIR No.202/93, for an offence under Section 188 PPC, is also decided by the competent Court and as such the accused has since been acquitted. In this way out of the six cases (FIRs) there remain only two cases against the applicant.
Admittedly the accused/applicant is in custody for a long time. Adjournments on behalf of the accused/applicant were not sought. As such delay in conclusion of the trial, under the circumstances, cannot be attributed to accused/applicant. The prosecution has not submitted any material in support of its contention that the applicant is involved in terrorism, or he is hardened, desperate or dangerous criminal. The case law cited by Mr. Sardar Muhammad Ishaque, here in the earlier part of this order, is relevant and favourable to the case of the accused/applicant.
5. Under the circumstances I allow the application and it is ordered that the applicant be released on furnishings solvent surety in the sum of Rs.2,00,000/- (Rupees Two Lacs only) and P.R. Bond in the like amount to the satisfaction of the learned trial Court.
6. After hearing both the learned counsel I have allowed the application today. These are the reasons for the same.