1. Applicant/accused is facing trial alongwith other co-accused namely Muhammad Waseem son of Aleemuddin, before the Court of IVth Additional Session Judge, Karachi East, in Crime No.5/1995 of Police Station Tipu Sultan, Karachi East, under section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
2. On 4-1-1995 at about 10-45 hours complainant Ghulam Mehdi who, by profession is driver, lodged an F.I.R. With Tipu Sultan Police Station, District East, Karachi alleging that on 28-12-1995 at about 16- 15 hours when, after dropping Begum Sahiba at Shara-e-Faisal near Duty Free Shops, he was parking his car, there appeared two young boys who snatched keys of the car from him and drove towards the Airport. It is further alleged by the said complainant that since those two persons were having arms, he did not raise any hue and cry. That he was constantly searching for the stolen car till lodging of the F.I.R. But since it was not traceable, he has come and has lodged the said F.I.R.
3. Counsel for the accused has pressed this bail application on the merits as well as on the ground of statutory delay of more than one year. It is argued by Mr. Abdul Jabbar Qureshi, Advocate for accused that the present accused was arrested on 28-12-1994 and that after his arrest, the present F.I.R. Was lodged on 4-1-1995 which clearly reflects mala fides of the prosecution. He has further contended that no identification test/parade was held nor any incriminating article was recovered from the present applicant/accused. That the co-accused namely Muhammad Waseem has been granted bail by the Trial Court. On the ground of statutory delay, he has taken me through the diary sheets which he has filed alongwith bail application to show that from 27-3-1995 when the charge sheet was filed before the Sessions Judge, Karachi East, till 13-6-1996 (for nearly 16 months) present accused was never produced before the trial Court. He has referred to the case of Moundar and others v. The State PLD 1990 SC 934 and the case of Mumtaz A.I v. The State 1991 PCr.LJ 734.
4. Learned counsel appearing for the State has vehemently opposed this bail application. He has contended that the accused applicant is not entitled for bail on the grounds of statutory delay as he is involved in four other offences of identical nature which is sufficient to bring the accused within the definition of hardened, desperate and habitual criminal or a terrorist. On the merits of the case, it is argued by the learned counsel for the State that at the pointation of the present accused four motor vehicles were recovered from the parking place of Quaid-e-Azam International Airport which fully establishes the prosecution case.
5. During hearing of this bail application before the trial Court, report was called from the Superintendent District Jail, Jacobabad which the accused has filed as Annexure "C" with his bail application. It reads as follows:-- "With reference to honourable Court letter No. Nil dated 21-3-1996, on the subject noted above, I have the honour to submit that under-trial prisoner Aslam son of Ismail Abbasi, was received on transfer from Central Prison Karachi to this jail on 1-6-1995 on Administrative grounds. He is involved in the following cases pending against him.
(1) Under section 13-D, Arms Ordinance, Crime No.53/95, Police Station Airport J.M. Malir, Karachi.
(2) Under section 324, Qisas and Diyat Ordinance Crime No.52/95, Police Station Airport A.D.J. Malir, Karachi.
(3) Under section 20 Enforcement of Hadd Ordinance Crime No.5/95, Police Station Tipu Sultan, IV- A.D.J. East, Karachi.
(4) Under section 14 Enforcement of Hadd Ordinance Crime No.41/95, Police Station Aziz Bhatti, F.C.M. East, Karachi.
6. The above cases will be tried inside the jail at Central Prison, Sukkur, as per ordered by the Government of Sindh Home Department Karachi vide Government Notification No.SO(PRS-II) HD/6- 14/95, dated 7-6-1995.
7. However, inside the jail his conduct/behaviour is satisfactory."
8. Except the above report which has been filed by the accused, no other material such as F.I.R., charge-sheet, 161, Cr.P.C. Statements recorded in the case as mentioned in the report of Superintendent District Jail, Jacobabad was placed before this Court. It is pertinent to note that on 20-6-1996 this Court directed the State counsel to ascertain antecedents and character from the jail authorities. It is vehemently argued by the Advocate for the accused that simply mention of four or five F.I.Rs. Does not bring the applicant within the definition of hardened, desperate and dangerous criminal or terrorist. He has relied upon the case of Moundar and others v. The State PLD 1990 SC 934, In this reported case a Full Bench of Honourable Supreme Court of Pakistan has interpreted and defined in detail the third and fourth provisos to section 497(1), Cr.P.C. In this reported case appellants were involved in seven or eight cases and majority of them (the appellants) were acquitted. Reference was made to the case of Gul Muhammad v. The State 1987 PCr.LJ 737. It was argued that mere registration of cases was not, in the circumstances of the case, sufficient to sustain the opinion formed by the Court below that the appellants were criminals of the categories as mentioned in the fourth proviso. It was observed by the Honourable Supreme Court that such argument has considerable force and that the learned Judge in the High Court did not fully examine the nature of cases the facts involved and the result thereof, before placing reliance on the mere factum of registration of cases as sufficient for the purpose of requisite opinion under the fourth proviso to section 497(1), Cr.P.C. The rule laid down in the case of Moundar was reiterated by another Full Bench of Honourable Supreme Court in the case of Jalal v. Allah Yar and another 1990 SCMR 525.
9. Mr. Hassan Inamullah has referred to the case of Mumtaz A.I v. The State 1991 PCr.LJ 734 to support as contention that while determining whether an applicant falls within the definition of desperate, dangerous or hardened criminal, the Courts have to take into account the following considerations:-- "(i) Nature of accusation and conduct of accused at the time of alleged incident,
(ii) previous record of the accused which may include his earlier prosecution, ,
(iii) the material before the trial Court and with the Investigating Agency and also the reports of police and jail authorities.
10. It is the cumulative effect of all these aspects by which the Court can determine such tentative opinion in this behalf. "
11. The above quoted view was also held earlier by another Single Judge of this Court Mr. Qaiser Ahmed Hamidi, J. (as he then was) in the case of Juma v. The State 1989 PCr.LJ 1235. Recently, Honourable Supreme Court in the case of Zahid Hussain Shah v. The State PLD 1995 SC 49 has again held that the right of an accused to be enlarged on bail under the third proviso to section 497(1), Cr.P.C. Is a statutory right which cannot be denied under the discretionary power of the Court to grant bail. This view was held after following the cases of Wazir Khan v. The State 1983 SCM R 427 and Nazir Hussain v. Zia-ul-Haq 1973 SCMR 72.
12. The burden upon an accused person seeking bail on the ground of statutory delay as provided in third proviso is to the extent to show that the required period has expired and, that the trial has not concluded. He is required to show that such delay was not caused by his acts or by the acts of his representative which includes his Advocate. To disentitle an accused person for the purpose of availing privileges of third proviso to section 497(1), Cr.P.C., R the burden is upon the prosecution to show that such accused falls within any of the categories as mentioned in fourth proviso. Such burden can be discharged by placing sufficient material before the Court for the purpose of forming an opinion. For reference see the cases of Muhammad Hanif v. The State PLD 1986 Kar. 437, Gul Khan and others v. The State PLD 1986 Kar. 629, Wazir A.I and others v. The State PLD 1986 Kar.
13. 646 and Nazar Muhammad and 2 others v. The State 1987 PCr.LJ 1754.
14. I have gone through the entire police file with the assistance of learned counsel appearing for the State. In order, not to prejudice the case of either party, I would like to refrain from commenting on the merits of this case as well as other cases in which the present applicant/accused is involved but would like to observe that the present applicant/accused does not fall in any of the categories as mentioned in fourth proviso to section 497(1), Cr.P.C., namely, hardened, desperate or dangerous criminal or terrorist.
15. Result of the above discussion is that this bail application is granted. Accused Muhammad Aslam shall be released upon furnishing one solvent surety in the sum of Rs.1,00,000 (Rupees one lac) with P.R. Bond in the like amount to the satisfaction of the learned trial Court.