MUHAMMAD ISLAM BHATTI, J.- Gulzar son of Malkoo and Muhammad Aslant son of Nawaz are among the nominated accused in case FIR No. 134 registered at Police Station Lalian on 16.6.1992 at 12.20 noon vide Rapat No. 9 under sections 302/382/109/148/149 PPC.
2. This FIR was lodged by one Muhammad Nawaz son of Sultan who claimed therein that on 15.6.1992 at morning time (Fqjar-wela) he alongwith his brother Bashir Ahmad. Muhammad Yar son of Slier Muhammad and Saifullah son of Khushi Muhammad had gone to the dera of Muhammad Ali Shalt in village Bhangar Shalt Behlol for the settlement of some dispute and Nian. After they got free from there they were coming home on mares. The complainant and Saifullah w ere on the back of one mare while Bashir Ahmad and Muhammad Yar w ere riding on the other mere. When they reached near the Dhari of Nawaz Dilawari Glotar at about Zohar Wela There emerged Gulzar son of Malkoo armed with wooden Moongli and his companions Abbas son of Mathela, Muhammad Aslant son of Nawaz and Muhammad Iqbal son of Muhammad all armed with sotas front a sugarcane field and came in front of the complainant party. Muhammad Ramzan caught hold of the reins (Lagctm) of the mare on which Muhammad Yar was sitting in lront and snatched from him his licenced rifle with 101 live cartridges. He also gat e him blow with the Butt of the rifle hitting him at his left rankle. Muhammad Ramzan fired in the air and exhorted his companions not to spare Bashir Ahmad. He also exclaimed that whatsoever came near would not be spared. Gulzar accused then gave a Moongli blow to Bashir Ahmad, w ho had since alighted from the mare hitting in his head. He fell down whereafter he was given sota blows one after the other by Abbas son of Mathela and Muhammad Aslant son of Nawaz hitting him on various parts of the body (described in the FIR). The complainant claims further that Muhammad RamzaiPremained firing in the air and they did not go near him out of sheer fear. The accused then succeeded in fleeing away after leaving Bashir Ahmad and Muhammad Yar in injured condition and while leaving they also took with them the licenced rifle belonging to Muhammad Yar.
3. Muhammad Aslam accused moved an application for post-arrest bail which was dismissed by the learned Additional Sessions Judge. Chiniot on 10.12.1996. Similarly, the bail application moved by Gulzar was also dismissed by the same learned Additional Sessions Judge on 5.1.1997
4. Both of them jointly moved the present application for their bail claiming inter alia that there was inordinate un-explained delay in lodging in the FIR; that the allegation in the FIR were partially found to be incorrect during thd investigation in that Abbas and Muhammad Ramzan were found innocent alongwith certain other persons who were subsequently joined as abetters of the offence while to other persons namely Ghazanfar and Noora were nominated to have inflicted injuries to the deceased; that the injuries attributed to Muhammad Aslam accused- petitioner were not on vital parts and that Muhammad Aslam had no direct motive to participate in the commission of the offence.
5. On 30.4.1997 after making certain submissions. Mian Sikandar Hayat. Advocate, counsel for the petitioners sought not to press the bail matter so for it related to Muhammad Aslam petitioner No.
2. The same was. Therefore, dismissed as withdrawn.
6. It. However, transpired on 27:5.1997 that Gulzar accused, whose bail matter has to be considered, was involved in as many s 29 criminal cases, the list of which is available on record. The learned counsel for the petitioner, however, contended that the number of cases could not be help the prosecution in claiming that the petitioner was a previously convicted offender or that he was hardened, desperate and dangerous criminal. He claimed further that for being a previously convicted offender the provisions of fourth proviso to Section 497 (1) Cr.P.C, had to be taken into consideration according to which the accused must have been convicted for an offence punishable what death or imprisonment for life and that the petitioner Gulzar was not covered under these provisions. A careful consideration of the criminal history/antecedents of Gulzar alias Gulazri accused-petitioner supports the contention of the learned counsel for the petitioner and he cannot be termed as a previously convicted offender. But it appears from the record that he did abscond from police custody on 5-8.1994 and was re-arrested on 7.11.1994. The learned Additional Sessions Judge, therefore, came to the conclusion that he was a dangerous criminal. He also observed that to of the co-accused of the petitioner were still absconders.
Keeping in view the circumstances he refused bail to the petitioner.
7. The learned counsel for the petitioner has again asserted before me that the petitioner cannot be termed as a dangerous criminal because the offence with w Inch he was charged on account of his slipping away from the police custody was covered under section 224 PPC which was bailable and the petitioner was in fact allowed bail therein on 23.4.1997 on his submitting bail bonds in the sum of Rs. 5i)()() - with one surety in the like amount. According to him the petitioner has been behind the bars ever-since his re-arrest on 7.11.1994 and the conclusion of the trial is not yet in sight and. As such, he is entitled to the concession of bail as of right under the third proviso to sub-section (1) of Section 497 Cr.P.C, having remained detained for a continuous period exceeding to years. He has sought support from what has been laid down in lftikhur Ahmad v. The State (19S3 P.Cr.L.J. 1512 (Karachi), Nazar Muhammad and 2 others v. The Stare (PLJ 1987 Cr.C. (Quetta) 412) and Abdul Majeed v. The State (1996 P.Cr.L.J. 298 (Karachi). He has laid great stress on the fact that the contention of the learned counsel for the State in 1983 P.Cr.L.J. 1512 (Karachi) that the petitioner in the said case was a proclaimed offender or was required in other criminal cases was not taken into consideration by the Court and the accused was allowed bail because the speedy trial was a well- recognized right of an accused person and if there was a delay, specially a statutory delay then the accused irrespective of the fact whether he was absconder or was required in other case, would be justified in asking for bail.
8. The learned State counsel has. However, controverted his assertions in this behalf and has urged that this right of the accused is subject to not being a pre\ious convict or a desperate, hardened or dangerous criminal and that a care fill consideration of the list of criminal cases in which Gulzar petitioner has remained involved shows that mainly lived on committing thefts or on dishonestly receiving the stolen properties and that is why most of the cases pending against him are under Section 379 and Section 411 PPC read with Section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. He has placed reliance on what has been laid down in Nigah Hussain Shah and another v. The Stale (NLR 1990 Criminal 573) Sajjad alias Jaida and another v. The State (PLJ 1911 Cr.C. (Peshawar) 425) and Zahid Hussain Shah r. The State (PLD 1995 Supreme Conn 49).
9. After considering all the relevant facts including the fact that the accused appears to be a habitual offender I am of the convinced opinion that if released on bail he would become fugitive from law as he already made an attempt in this behalf. He has a long criminal history and obviously lives on what he earns through committing theft or receiving stolen properties. He has, therefore, no good case tor bail. The bail petition is accordingly dismissed.
10. The learned trial Judge shall, however, me genuine efforts to expedite the conclusion of the trial.