1. ' SAIYED SAEED ASHHAD, J.---This bail application has been moved on behalf of accused/applicant Fazal Muhammad, who was challaned by the Kotdiji Police in the Court of Special Judge (S.T.A.), Sukkur Division at Khairpur to face trial for an offence punishable under sections 171, 395 and 412, P.P.C. As well as under section 13-FD of the Arms Ordinance ' The brief facts of the case, as narrated by complainant Muhammad Iqbal in the F.I.R. Lodged by him at Police Station Kotdiji, District Khairpur on 12-1-1995 at 4-30 p.m. Under sections 382 and 342, P.P.C. And section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, are that he was employed as a driver by Master Abdul Aleem to drive his oil tanker bearing registration No,QAC/2398 and one Muhammad Rafiq was employed as a cleaner. It has further been stated that on 19-12-1994 complainant Muhammad Iqbal along with cleaner Muhammad Rafiq got the said oil tanker filled with 14000 litres of diesel oil from P.S.O., Karachi for transportation of the same to Quetta. On 20-12-1994 at 9-00 p.m. They reached Mithri Bridge on the National Highway and at that time one yellow taxi after overtaking the said oil tanker made it to stop. Six persons were sitting in the said taxi, out of whom four were in the police uniform and one of them was armed with Kalashnikov. The persons sitting in the taxi told complainant Muhammad Iqbal that he had caused an accident and killed a man and asked him and the cleaner to come out of the oil tanker. On their doing so two persons came out of the car and took possession of the oil tanker and complainant Muhammad Iqbal and cleaner Muhammad Rafiq were made to sit in the taxi which started moving and after about 4 or 5 hours' journey complainant and cleaner Muhammad Rafiq were dropped on the National Highway and were told by the culprits that the oil tanker would be available parked near Taj Petrol Pump, Rohri. Both the complainant and the cleaner proceeded to Taj Petrol Pump where they found the above oil tanker parked with punctured tyres and the entire 14000 litres of diesel oil, one wrist watch and cash of Rs,2200 missing. Complainant Muhammad Iqbal proceeded to Quetta to inform Abdul Aleem, the owner of the oil tanker and as he was not available there he had to go to Karachi to meet the said Abdul Aleem. Owner Abdul Aleem after coming to know of the above facts accompanied Muhammad Iqbal to Police Station Kotdiji for lodging the above F.I.R.
2. ' The police after recording the above F.I.R. Started investigations of the case and submitted challan in the Court of Special Judge (S.T.A.) Sukkur Division, Khairpur on 22-2-1995 against the above accused as well as six others namely Riaz Hussain, Imam Bux, Pervez Ahmed, Rafiq Ahmed, Ghulam Akbar and Abdul Jabbar.
3. ' Bail application on behalf of the aforesaid accused was moved in the Court of Special Judge (S.T.A.) Sukkur Division, Khairpur which was dismissed vide order dated 31-7-1966. Hence the above bail application.
4. ' We have heard the arguments at length of Mr. Behram Khan Ujjan, learned counsel for the applicant and Mr. Habib Ahmed, learned Assistant A.-G., Sindh for the State. Mr. Habib Ahmed has vehemently opposed the bail application on the ground that from the material in possession of the prosecution consisting of the evidence of complainant Muhammad Iqbal, P.W. Muhammad Rafiq son of Fazal Muhammad, P.W. Allah Wasayo, P.W. Shah Muhammad and Ghulam Qadir, confessional statements of accused/applicant Fazal Muhammad as well as of all the six other co- accused and the circumstantial evidence of recovery of oil tanker from Taj Petrol Pump with the entire 14000 litres of diesel oil, one wrist watch and cash of Rs,2200 missing, prima facie the offence of dacoity, as defined in section 391, P.P.C. Is made out against Fazal Muhammad as well as all the other co-accused. He further submitted that since the same is punishable under section 395, P.P.C.
5. With imprisonment for life, or with rigorous imprisonment up to ten years, the case of accused/applicant Fazal Muhammad is hit by the embargo contained in section 497, Cr.P.C. And he is not entitled to be enlarged on bail.
6. ' Mr. Behram Khan Ujjain, learned counsel for the accused/applicant Fazal Muhammad, initially attacked the veracity and reliability of the prosecution case on the ground of the un-explained delay of 22 days in lodging of the F.I.R. He further submitted that the explanation advanced by the learned A.A.-G. That complainant Muhammad Iqbal had gone to Quetta and then to Karachi to find out Abdul Aleem, owner of the oil tanker, to inform him of the above incident and the facts and thereafter he lodged the F.I.R. On being so advised by the said Abdul Aleem is absolutely devoid of any force and is least plausible and acceptable. He further submitted that actually the delay of 22 days has gone unexplained in the F.I.R. And adversely effects the reliability and veracity of the prosecution case and the prosecution evidence is to be examined with great care and cautions for determining the guilt of the accused/applicant Fazal Muhammad. The contention advanced by the learned counsel for the accused is not without substance. The delay of 22 days has not been explained at all. It has been urged on behalf of the accused that the said delay of 22 days in lodging the F.I.R. Was to enable the complainant to fabricate and concoct a false case against accused Fazal and other co-accused in place of the real culprits, whose identity could not be ascertained. The possibility of false implication though remote yet it cannot be ruled out, which necessitates exercise of due care and cautions in placing reliance on the prosecution evidence and accepting its version.
7. ' The next ground urged by Mr. Behram Khan Ujjan in support of the bail application is that the prosecution from the very beginning has acted in a mala fide and biased manner against accused/applicant Fazal Muhammad as well as the other co-accused and had tried to aggravate and magnify their culpability and for this purpose had involved them in more serious and heinous offences than what were assigned to them in the F.I.R. Solely with a view to bring their case in the Special Court (S.T.A.) so as to deprive them of the benefit of bail.
8. ' From perusal of the material on record, it is to be observed that initially the F.I.R. Was recorded under sections 382 and 342, P.P.C. And section 20 of the Offences Against Properties (Enforcement of Hudood) Ordinance. Section 382, P.P.C. Provides punishment for theft committed after making preparation for causing death, or hurt, or restraint, which is rigorous imprisonment for a term extending to ten years and fine. However, when in committing theft the person voluntarily causes or attempts to cause death or hurt or wrongful restraint, or fear of instant death or of instant hurt or of wrongful restraint then the offence becomes one of robbery. When robbery is committed by five or more persons conjointly then every one of them is said to commit dacoity as defined in section 391, P.P.C. And punishable under section 395, P.P.C. According to the contents of the F.I.R. Six persons including accused Fazal, one of whom was armed with a klashinikov robbed complainant Iqbal and P.W. Rafiq of the oil tanker and also wrongfully restrained them. The above facts and circumstances prima facie disclose the commission of the offence of dacoity. The allegation of mala fides and bias against the prosecution for submitting the charge sheet under section 395, P.P.C. Is not supported from the material on record and does not find favour with us.
9. ' The learned counsel for accused Fazal further submitted that the incident had taken place at 9-00 p.m. On the National Highway and it would have been dark at the place of incident as obviously there are no street lights on the National Highway. He further submitted that there is no mention in the F.I.R. As to the light in which complainant and P.W. Muhammad Rafiq had seen accused/applicant Fazal Muhammad and the other co-accused. It was further pointed out that the incident had taken place on 20-12-1994 whereas the accused/applicant was arrested on 12-2- 1995, i,e, after 54 days of the incident and identification of accused/applicant Fazal Muhammad by the complainant and P.W. Muhammad Rafiq 54 days after the incident, when they had seen accused/applicant Fazal Muhammad in the dark during night hours, is very doubtful and it cannot be said with any degree of certainty that the prosecution has succeeded in prima facie establishing the identity and involvement of accused Fazal in the aforesaid offences. The contention advanced by the learned counsel for the accused would have carried force, but in view of allegation of enmity levelled against the complainant and private witnesses, thereby suggesting that the accused were known prior to the incident, the same loses force. Another aspect due to which not much importance can be attached to the above contention is that both the complainant and P.W. Rafiq had remained together with four of the six accused in the taxi for about three hours, and for the time being the question of identification of accused/applicant Fazal is beyond any doubt.
10. ' After having taken into consideration the arguments advanced, by the learned counsel for the accused/applicant and going through the material on record, consisting of the F.I.R. The charge sheet, the 161, Cr.P.C. Statements of the P.Ws. Evidence of the prosecution witness so far examined in the trial Court, a reasonable doubt arises with regard to the reliability and veracity of the prosecution case on account of the unexplained delay of 22 days in lodging the F.I.R. Complainant Iqbal could and should have lodged the complaint immediately after he was set free by the persons who had restrained him. His failure to do so raises an unavoidable presumption that the complainant had acted on the instructions of Abdul Aleem, owner of the oil tanker in lodging the F.I.R. And in implicating or naming therein the person allegedly responsible for the commission of the above offence. In such circumstances the possibility of addition/inclusion of the names of some of the accused together with the real culprits cannot be completely ruled out. Such a possibility raises an obvious adverse inference on the credibility and truthfulness of the prosecution case and exposes it to suspicion and doubt making it a case for further inquiry for prima facie connecting the accused/applicant with an offence punishable with imprisonment for life or ten years so as to bring his case within the embargo contained in section 497, Cr.P.C.
11. ' Mr. Behram Khan, the learned counsel for the accused/applicant submitted that if any of the aforesaid grounds and contentions advanced by him is not found plausible or having force for grant of bail to the accused applicant, then he would be entitled to the same on the ground of delay in conclusion of the trial. He further submitted that the prosecution is not in possession of any material to show that the accused/applicant is a previously convicted offender or is a hardened, desperate or dangerous criminal. Mr. Habib Ahmed, the learned A.A.-G. Conceded that no material is available with the prosecution to establish that the accused/applicant is a desperate, hardened and dangerous criminal so as to bring the case of the accused/applicant within the prohibitory clause of section 497, Cr.P.C. But submitted that the nature of the offence, the ruthless and the daring manner of its commission is sufficient to hold the accused/applicant to be a hardened, desperate or dangerous criminal.
12. Accused/applicant Fazal Muhammad was arrested on 12-2-1995 and since then he has been in custody. The prosecution has cited 14 witnesses in the charge sheet and six persons have been mentioned as reserved witnesses. More than 2-1/2 years have passed but only two prosecution witnesses have been examined while the examination of the third prosecution witness P.W. Ghulam Qadir is still in progress and the matter has been reserved for his further examination-in-chief.
13. Delay in conclusion of trial is one of the grounds for grant of bail in view of the third proviso to section 497, Cr.P.C. Subject to the provisions of the fourth proviso to section 497, Cr.P.C. For establishing the accused/applicant as a hardened, desperate or dangerous criminal, the prosecution is required either to produce evidence of his past involvement in criminal activities, his association with criminal commission of the crimes and conviction, therefore, in the past or to show that the offence in respect of which he is facing trial has been committed in such a daring, dangerous and ferocious manner so as to suggest least respect for law and the desperate, reckless and defiant attitude of the accused/applicant. No doubt that the manner of commission of the offence in question is suggestive of planning and scheming as well as show of and use of force but the elements of ruthlesseness, desperation and terrorisation are lacking. The contents of the F.I.R. Reveal that the accused/applicant did not resort to terrorism or ferociousness to frighten the complainant and P.W. Rafiq in committing the said offence of dacoity. They relied more on deceit and falsehood in committing the said offence. Therefore, the planning and methodology applied by the accused/applicant and the co-accused does not warrant an inference of the accused-applicant being a hardened, desperate or dangerous criminal. It is, thus, established that there is no impediment on allowing bail to the accused on the ground of delay in conclusion of trial within the period for one year as per clause (a) of the third proviso to section 497, Cr.P.C. It is a settled principle that when the case of an accused is covered by the third proviso then the grant of bail to him is not discretionary with the Court but the accused is entitled to the same as of right. For the above proposition reliance is placed on the following cases:--
(1) Nazir Hussain v. Ziaul Haq, reported in 1983 SCM R 72 and
(2) Zahid Khan v. The State reported in PLD 1995 SC 49.
14. It will not be out of place to refer to the case of the State v. Ghulam Sarwar, reported in 1990 SCM R 1045, wherein their Lordships were pleased to declare that the bail on the ground that the trial was not concluded within one B year, can be refused when it is on record that the accused/petitioner is a hardened, desperate or dangerous criminal. It has already been held in the discussion hereinabove that the material on record does not suggest that the accused/petitioner is a hardened, desperate or dangerous criminal.
15. ' Upon the above discussions, we have come to the conclusion that this is a fit case for enlarging accused/applicant Fazal on bail on account of the delay in conclusion of the trial within the statutory period of one year. Accordingly, bail is allowed to the accused/applicant on furnishing surety in the sum of Rs,1,00,000 and P.R. Bond in the like amount to the satisfaction of the Trial Court.