1. ' Both the applicants/accused are facing trial in Crime No,15 of 1992 of Police Station Jhalloo 'before the Special Court (S.T.A.), Dadu. They have filed this bail application on merits of the case as well as on the ground of statutory delay.
2. The aforesaid F.I.R. Was filed after a belated period of 23 months i,e, 11-12-1992, by one Hajan son of Haji MuhammadKhan, alleging therein that on 23-1-1992, he alongwith his nephew Qurban Khan son of Achar Khan, were returning 40 their village in the evening and when they reached near Aminani Katcha path of Khairo Dero, they saw 18-20 dacoits including present two applicants/accused, having Klashinikovs and rifles in their hands. It is further alleged that they abducted nephew of complainant namely Qurban, for the purpose of ransom'and took him to the Otaq of Nasarullah Bughio. It is further alleged that after a lapse of nearly one month, a sum of Rs,2,00,000, was paid to dacoit Laiq Chandio through Ghulam Mustafa Jatoi, who arranged for release of Qurban. In the end of the said F.I.R., it is alleged that due to fear, complainant has not lodged F.I.R., but after arrest of dacoits Laiq Chandio and others he had appeared and lodged this report.
2. ' We have Mr. Syed Madad Ally Shah, Advocate for the applicants/ accused and Mr. Mukhtiar Khanzada Advocate for the State.
3. ' On merits, it was contended by Mr. Shah that there is an unexplained delay of 23 months; that no identification test was held; that there is no specific allegation of overt act against the present applicants; that both the applicants/accused were arrested on 26-12-1992. It was further contended that now applicants/accused are in custody for more than five years and the trial of the case has not yet been concluded. It was also pointed out to us that one of the accused namely Mubeen son of Ramzan, who has been named in the F.I.R. And was absconding earlier, due to which the trial could not proceed, and who was declared absconder by the trial Court on 1-1-1994, subsequently appeared before the trial Court and was granted pre-arrest bail on 12-5-1997, by the Special Judge (S.T.A.), Dadu, on consideration of the following circumstances, which are being reproduced from the case diary dated 12-5-1997 of the trial Court:--- "... Mr. Imam Bux Ghuryani files pre-arrest bail on behalf of accused Mubeen. Notice is waived by S.S.P. Heard arguments, bail is granted to accused Mubeen in the sum of Rs, one lac and P.R. Bond in tire like amount. The accused is present, he is directed to attend on 21-5-1997 to face his trial --- -."
4. ' We are told that at the relevant time Mr. Muhammad Shafi Arain, was the Presiding Officer of the Special Court (S.T.A.), Dadu. We are were shocked to note that the interim bail was granted to co- accused Mubeen without first issuing notice to the prosecution, which is a mandatory requirement, as provided under section 498-A, Cr.P.C. The learned Special Judge, has neither considered the reasoning of his absconding nor has passed any speaking order stating the reason, which prevailed for grant of pre-arrest bail to this accused, who has been declared absconder. We are further informed that he was the same Judge, who had declined to grant bail to the present two applicants/accused on the ground of statutory delay. He h'as declined to grant bail in a slipshod manner, without considering who was responsible of the delay of the trial. One of the ground, taken by him, was that the 3rd proviso to section 497(1), Cr.P.C. Is not attracted in the proceedings before the Special Court (S.T.A.). It appears that the learned Judge has not gone through the case, The State v. Syed Qaim Ali Shah 1992 SCM R 2192, where it was held by a Full Bench of Honourable Supreme Court that all the four provisions to section 497(1), Cr.P.C. Are attracted in cases arising out of Suppression of Terrorist Activities (Special Courts) Act, 1975. We, therefore, refer this matter to the Member Inspection Team to look into.The conduct of learned Judge and to place this matter before the Honourable Chief Justice of this Court.
5. ' Mr. S. Madad Alley Shah has also referred to the cases, Muhammad Asim and others v. Judge Special Court and others 1997 PCr.LJ 1890, Shamon Jatoi v. The State 1996 PCr.LJ 783 and the case of Muhammad Hussain and 6 others v. The State 1996 PCr.LJ 1309. In all these three cases, it was held by three different Division Benches of this Court that 3rd proviso to section 497(1), Cr.P.C. Are attracted and the applicants, in all those cases, were admitted to bail on the ground of statutory delay.
6. ' We have considered the arguments of both the learned counsel. Mr. Khanzada, in view of the aforesaid laws as well as the circumstances of the case, has extended no objection to the grant of this bail application. Before the trial Court one report from the Superintendent, Central Prison, Hyderabad was obtained, which shows that present applicants/accused are involved in two cases, one is the present case and the other is of Police station Khairo, which has not yet been concluded, and both the applicant applicants/accused are on bail. The accused/applicant No,2 has been acquitted from the third case, for which Mr. Shah has filed copy of the judgment from the Court of III Additional Sessions Judge, Dadu. We have gone through the case diaries of the Trial Court.' The delay was caused for the reasons that on several occasions, accused, who are in jail custody, were not produced and that it took nearly two years in declaring co-accused Mubeen as absconder. We are of the tentative view, after going through the contents of the F.I.R. That it does not transpire that applicants/accused are desperate, dangerous, hardened or terrorists. No other material was placed by the prosecution, either before the trial Court or before this Court, in order to prima facie show that the applicants/accused are not entitled for the benefit of bail on the ground of statutory delay, or they fall in any one of the category as shown in the 4th proviso to section 497(1), Cr.P.C.
7. ' As a result of above discussion, we had 'accepted this bail application and ordered that applicant/accused shall be released on bail upon furnishing solvent surety in the sum of Rs,1,00,000. Each with P.R. Bond in the like amount to the satisfaction of the trial Court through a short order on 3-12-1997. Above are the reasons for the said short order.