1. ' The facts leading to present application for bail are that applicant/accused Amjad Pervaiz alias Amjad is facing trial in Sessions Case No,442 of 1995 before Vth Additional Sessions Judge, Karachi South arising out of F.I.R. No,170 of 1994 dated 25-7-1994 of Police Station Defence District Karachi South under section 17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
2. The contents of F.I.R. Are reproduced below:- ' "Received one statement through P.C. Raj Khalid 3408 recorded on scene by S.H.O. Inspector Rao Muhammad Iqbal for incorporating the same in 154, Cr.P.C. Book. The contents of the same are that today i.e, on 25-7-1994 at about 1.10 p.m. Ghulam Muhammad Soomro son of. Allandino Soomro, Manager Allied Bank Sun Set Lane No,9 Khayabane-Jami Road, Defence Extension Karachi on enquiry, disclosed that today as usual I was busy in the Branch alongwith my staff when at about 12.45 p.m. Two persons alongwith their two other, companions who were already present in the Bank were sitting with Hassan Akbar Rizvi for the purpose of opening the account. Out of them one person suddenly attacked Police guard who was on his right side and snatched his gun. I Immediately rang the alarm and went towards them whereupon companion of accused gave threats of murder to me and caused blows with the butt of gun to me and confined me in Kitchen.
3. Thereafter, accused and his companions started collecting cash and prize bonds from cashier Junaid and the room where safe is kept. Subsequently my staff informed me that they overpowered guard Nazir Ahmad of S.M.S. And also snatched his gun. After causing fire-arm injury to him they took away his gun alongwith cash of Rs,1,46,444 and prize bonds worth Rs,1,03,000 and fled away in Car.No,LS 2933/LS-9201 which was parked outside. While fleeing they threw the gun of Police guard outside the Bank in mud. I informed the Defence Police as well as Head Office on Phone. The injured guard Nazir Ahmed has been sent to Jinnah Hospital in the Private vehicle of staff. I complain that four unknown accused of young age wearing Shalwar and shirt whom I can identify have committed robbery of cash amount and prise bonds from the Bank and they also took away the gun after causing injuries to the guard. Investigation be made. Report has been read over to me. It is correct."
4. ' That during the course of investigation accused police constable Sarfraz Ahmed and police constable Muhammad Qasim were arrested and challan was submitted in the Court, wherein the present applicant/accused Amjad Police constable of Police Lines Karachi West was shown as absconcer alongwith two other accused, who are also police constables. Trial Court took every step as contemplated under law to procure the attendance of applicant/accused but all in vain and ultimately he was declared proclaimed offender and proclamation under sections 87, and 88, Cr.P.C. Was issued against him.
5. ' The applicant/accused was subsequently arrested in some other case and he was confined in Central Prison Karachi from where he was produced in this case. Applicant/accused applied for bail before the trial Court but the same was refused by impugned order date 3-3-1998.
6. ' Mr. Mumtaz Ali Khan Deshmukh, learned counsel for the applicant/accused has contended that name of applicant/accused does not transpire in F.I.R. And no specific role has been ascribed to him; that the accused is facing trial in all, in four cases in different Courts, and that he has been granted bail by trial Court in three cases; that no identification test was held; that more than one year has passed but his trial is not concluded, therefore, his case is covered by proviso (3) to section 497(1), Cr.P.C. And he is entitled to bail.
7. ' Mr. Habib Ahmed, learned Additional Advocate-General for the State has contended that the applicant/accused being a police constable alongwith his other colleagues committed heinous offence of Bank robbery by injuring one person with firearm; that he was absconder for more than 2-1/2 years and was decreed proclaimed offender hence he cannot get benefit of his own wrong; that there are several eye-witnesses in the case and they are yet to be examined; that the accused is hardened desperate and dangerous criminal, hence his case is not covered by proviso
(3) to section 497(1), Cr.P.C. It is, therefore, contended by him that he is not entitled to bail.
8. ' I have considered the arguments of Mr. Deshmukh, learned counsel for the applicant/accused and Mr. Habib Ahmad, learned Additional Advocate-General for the State and, I have also perused the material.
9. The applicant/accused who is a police constable is involved in broad day light Bank robbery alongwith his other colleagues who are also policemen, and during the act of robbery, complainant sustained injuries with the butt of the gun and the Bank guard sustained fire arm injuries at the hands of accused party. The duty of the police is to protect the people from the bandits and out laws but unfortunately in this case, prima facie, the protectors of law and order have themselves violated the same. The applicant/accused remained an absconder and fugitive from law for more than 2-1/2 years and such proclamation was issued against him by the trial Court under sections 87, and 88, Cr.P.C. He did not voluntarily surrender before the Court to face the trial but when he was arrested in another case and he was confined in central prison, only then his counsel informed the trial Court about his availability, as is evidenced from the case diary of 25-2- 1997. It shows that applicant/accused knew before hand that he was required in the present case also. The unexplained abscondence for a long period disentitles an accused to the concession of bail because by such conduct he thwarts the investigation through which collection of material evidence like recovery is made impossible. The fugitive from law loses the normal rights provided under law. In this context I am fortified by the Decisions of Hon'ble Supreme Court in Case of Sher Ali alias Sheri v. The State reported in 1998 SCM R 190 and Awal Gul v. Zawar Khan and others reported in PLD 1985 SC 402, so far the contention of learned counsel that name of accused does not transpire in F.I.R., and that no specific role has been assigned to him or that no identification parade was held is concerned, in my view looking to the peculiar circumstances of case it tantamounts to deeper appreciation or evaluation of evidence which is not permissible under law for the purpose of bail. Moreover, the accused did not surrender before the Investigating Agency, therefore, the plea regarding identification test or specific role is not available to him. The contention regarding statutory delay also has no force as the applicant/accused is facing trial in a case under section 17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 for which penalty provided under law is that of death. Thus, to derive the benefit of proviso (3) to section 497(1), Cr.P.C. Accused can move the Court after two years and that too only when delay is not caused by any act or omission of the accused or any one acting on his behalf and that his act is also not covered by the proviso (4) to section 47(1), Cr.P.C The up shot of the above discussion is that the applicant/accused is not entitled to bail and consequently his bail application stands dismissed.
10. ' The observations made hereinabove are of tentative nature and they shall not in any way influence trial Court while finally disposing of the case, which needless to say will be decided by the trial Court upon the final evaluation of evidence brought on record.