' MUHAMMAD ROSHAN ESSANI, J.---We propose to dispose of these three bail applications i.e, Criminal Bail Application No,289 of 1998, Criminal Bail Application No,422 of 1998 and Criminal Bail Application No,290 of 1998, by this single order as Criminal Bail Application No, 289 of 1998 and Criminal Bail Application No,422 of 1998 arise out of one and same F.I.R. And Criminal Bail Application No,290 of 1998 is also of shoot of the same incident.
2. The facts leading to Criminal Bail Application No,289 of 1998 and Criminal Bail Application No,422 of 1998 are that applicants/accused Dhani Bakhsh son of Muhammad Ibrahim, by caste Gorkhani and Peer Muhammad son of Noor Muhammad, by caste Khoso, are facing trial in Criminal Special Case 41 of 1997 before Special Judge, Suppression of Terrorist Activities, Sukkur, arising out of F.I.R.
No,4 of 1996, dated 30-1-1996 of Police Station S.I.T.E., Sukkur, under section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
3. The brief facts of the prosecution case, as stated in the F.I.R. Lodged by one Taj Muhammad Kalore, are reproduced hereinbelow:- ' "Report is that I am Manager of Muslim Commercial Bank Limited, Sabzi Mandi Branch, ,Shikarpur Road, Sukkur. Today as usual Muhammad Dawood son of Muhammad Moosa Khilji, (2) Abdul Basit son of Ghulam Muhammad Abbasi, (3) Zulfiqar Ali son of Muhammad Bakhsh Baloch, (4) Rafique Ahmed Sheikh, Bank Guard and PC Piyar Ali of Police Station S.I.T.E. In police uniform with his official klashinkov, were present on duty. The public was busy in their daily affairs when at about 11-45 hours four unknown persons entered in the Bank. Three had T.T. Pistols and fourth had kalshnikov.
They made the police constable and other staff hostage and snatched the official klashinkov from the constable. One person armed with T.T. Pistol caused me first blow and got removed my wrist watch and two rings. They took me and cashier Abdul Basit to strong-room on the point of arms and got forcibly opened the strong-room and safe. They took out the cash and bonds, detailed below and put the same in the bag which they had brought. They confined us in the strong-room and after cutting the telephone connection wires and breaking the glass of main gate went-away.
The faces of the culprits were open. We have seen them properly and can identify after seeing them. After a short while we knocked the iron gate of strong-room from inside and raised cries on which persons from public came and opened the door. We came outside. I went to the neghbouring shop wherefrom on telephone I informed the S.I.T.E. Police. We then counted the cash.
Now I have come at police station and complain that aforesaid accused forcibly entered in the bank and after causing blow, committed robbery of cash by force from the strong-room of Bank and wrongfully detained us while we were performing official duty. They snatched official klashinkov from Rafique Ahmed and Constable Piyar Ali. Complaint is lodged. Justice be done."
' The total cash RS.36,66,451, one rado dialstar watch, three golden rings, valued at Rs.9,000 and a klashinkov were robbed by the bandits. (Detailed description of the same is given in the F.I.R.).
4. The facts giving rise to Criminal Bail Application No,290 of 1998 are that applicant/accused Dhani Bakhsh along with other accused are facing trial in Criminal Special Case No,41 of 1997 before Special Judge, S.T.A., Sukkur, arising out of F.I.R. No,5 of 1996, dated 30-1-1996 of Police Station, S.I.T.E., Karachi, under sections 353, 324 and 149, P.P.C.
5. The brief facts of the prosecution case, as disclosed in the F.I.R. Lodged by S.I.P./S.H.O. Iqbal Ahmed Sheikh, are reproduced hereinbelow:-- ' "On behalf of State complaint is that I alongwith subordinate staff P.C. Haroon 202, P.C. Wilayat Hussain Shah, 1836, P.C. Rustom Ali 3599, P.C. Zafar Ali 3301, P.C. Muhammad Shoeb 418, vide daily diary entry No,8-1000, on 30-1-1996 in Government Vehicle No,S.P.-5051, driven by M.C. Gulzar Ahmed, with arms and ammunition were patrolling in the area when we received intimation from the Control Room Sukkur that four unknown armed accused after committing robbery of cash from M.C.B., Sabzi Mandi Branch, are going towards Katcha Protective Bund in a white car. On receiving such information we reached Bank where we made enquiry about the incident. We took Abdul Basit, cashier of the Bank and another officer Muhammad Pinyal Mahesar. S.D.P.O. Mando Dero Ayaz Ahmed Soomro alongwith police personnel i.e, P.C. Muhammad Amin 2088, P.C. Jawaid Ahmed 3109, in official vehicle No, S.P.-4812 alongwith Driver M.C. 741, Mir Hasan and the S.H.O. Abad alongwith police personnel i.e, A.S.I./Mubashar, M.C. 369 Muhammad Khan, W.C. 1113, Muhammad Ismail, P.C. 2308 Abdul Qadir, P.C. 3237 Khadim Hussain, P.C. 3578 Azizur Rehman, P.C. 3870 Sikandar Ali, P.C. 2435 Haji Khan, P.C. 3340 Muhammad Hasil, P.C. 7332 Muhammad Ibrahim, P.C. 3536 Irshad Ahmed and P.C. 900 Nazir Hussain Shah also accompanied us. We went in pursuit of the accused making inquiries on the road and reached at link road Rahooja English berries jungle, we saw one car of white colour parked there. We all police personnel immediately got down from the vehicles.
The culprits on seeing the police vehicles made direct firing on us with klashnikov and pistols from the side of parked white car. We challenged and disclosed them our identity. We took position and returned fire in our self-defence. In the meanwhile D.S.P. Headquarter, Mr. Ghulam Mustafa Chandio alongwith police constables P.C. 1479 Zafar P.C. 2155 Aftab, reached in a Government vehicle No,S.P.
4754, driven by P.C. Majid Ali, F.S.P. Mr. Anwar Hussain Soomro, Sukkur alongwith P.C. 1114 Hazaro, P.C.
3906 Abdul Hanif, P.C. 2373 Nur Muhammad Junejo reached in Government vehicle No, S.P. 4754, driven by P.C. 4873 Muhammad Bakhsh. Encounter continued for about thirty minutes. In the meantime two accused on our direction surrendered. We went to them and arrested them with klashinkov and following arms. We searched for remaining three accused but they had slipped away towards 'katcha'. Police party had seen them, properly and can identify after seeing them.
One accused in presence of Mashirs Muhammad Piryal Mahesar son of Ghulam Rasool and S.I.P.
Ghulam Sarwar S.H.O. Abad disclosed his name as Pir Muhammad alias Asif son of Nur Muhammad, by caste Khoso resident of Karachi (East). On his personal search one klashinkov of following detail was secured from his right hand and one T.T. Pistol was secured from the right side fold of his Shalwar. For klashinkov he disclosed that it was the same which was snatched from police guard of Bank. One identity card bearing No,519- 94-178782, containing the name Pir Muhammad was secured. The co-accused disclosed his name as Dhani Bakhsh son of Muhammad Ibrahim, by caste Ghorkhani resident of Gorkhani Shakh, Uderolal. One klashinkov of following description was secured from his right hand. Both the klashinkovs were opened and their magazines were found empty. The empties of klashinkov and T.T. Pistol were lying on the ground which were secured by the police. For the rest of the accused, search was made but did not get any clue as they taking advantage of jungle had disappeared. The arrested accused disclosed the names of the co-accused as Bahnwal son of not known, Deshak resident of Qasimabad, Hyderabad, (2) Mumtaz son of not known; by caste Panhwar resident of Dadu, (3) Ajmal son of not known, by caste Jatoi, resident of Shikarpur. The parked Car No,R-3629 was searched and from the foot stepper of rear seat one klashinkov with loaded magazine was secured. On opening the magazine three live bullets were found therein. From the dash-board box four live bullets of klashinkov were recovered. The robbed money was secured from the diggy of the car which was lying in a bag. The arrested accused and each was identified by the cashier Abdul Basit at the spot.
The cash was counted and it was Rs.35,74,704, Pakistani currency. It was secured under Mashirnama in presence of Mashirs Muhammad Pinyal Mahesar and Ghulam Sarwar Veesar, S.H.O.
Abad. Such Mashirnama of arrest, search and recovery of car was prepared. The accused, car and property were brought at police station where F.I.R. On behalf of State was lodged. The detail of recovered cash, car, arms and amunititon is given in the F.I.R.".
6. The police after usual investigation sent up the accused in both cases to stand trial.
7. Applicants/accused applied for bail before the trial Court in both the cases but the same was refused by impugned order, dated 18-10-1997.
8. At the very outset, Mr. Abdul Waheed Katpar, learned counsel for the applicant/accused in Criminal Bail Application No,422 of 1998, and Mr. Masood Noorani, learned counsel for the applicant/accused in Criminal Bail Application No,289 of 1998 and in Criminal Bail Application No,290 of 1998, contended that they press the bail applications only on the ground of statutory delay and rule of consistency as co-accused Ajmal was granted bail by the trial Court. According to them accused were arrested on 30-1-1996 but their trial is not concluded so far; that the delay is not caused due to any act or omission of the applicants/accused or any other person acting on their behalf; that they are entitled to bail, as envisaged under proviso (3) to section 497(1), Cr.P.C.
9. Mr. Habib Ahmed, learned A. A.-G., for the State, has contended that the accused have committed bank robbery and recovery was also made from their possession; that they are hardened, desperate and dangerous criminals; therefore, their case is covered by proviso (4) to section 497(1), Cr.P.C. And they are not entitled to bail.
10. We have heard the learned counsel for the parties and perused the material placed on record.
11. The ground of statutory delay was not previously available to the accused in the Code of Criminal Procedure, 1898. The provisos 3 and 4 were added to section 497(1), Cr.P.C. By Ordinance LXXI of 1979 and Ordinance XXXII of 1983. The enacted privisos are reproduced herein below:-- "Provided further that the Court shall, except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf direct that any person shall be released on bail--
(a) who being accused of any offence not punishable with death has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded; or
(b) who, being accused of an offence punishable with death has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded: ' Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal."
12. The aforesaid provisos 3 and 4 to section 497(1), Cr.P.C. Were omitted by the Code of Criminal Procedure (IInd Amendment) Ordinance HI of 1993 and were reinserted by Act XIX of 1994, which reads as under:-- "Provided further that the Court shall, except where it is of.Opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf or in exercise of any right or privilege under any law for the time being in force, direct that any person shall be released on bail--
(a) who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded; or
(b) who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded: ' Provided further that the provisions of the third proviso to this subsection shall not apply to previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or involved in terrorism."
13. The comparative study of both the amendments show that in latter enactment in proviso 4 to section 497(1), Cr.P.C. Words "for an offence punishable with death or imprisonment for life" and "or involved in terrorism" have been added, which were missing in the previous enactment.
14. In our humble view, wisdom of the Legislature behind the insertion of words "or involved in terrorism" was that if the act of the accused is dreadful, horrible or fearful and it creates panic or alarm for an individual, society or public-at-large, then it can be termed or construed as "terrorism".
15. In Black's Law Dictionary (Sixth Edition ) at page 1473, meaning of the "Act of Terrorism" is given as an activity that involves a violent act or an act dangerous to human life that is a violation of the criminal law of any State or that would be a criminal violation if committed within the jurisdiction of any State and appears to be intended (i) to intimidation or coerce a civilian population, (ii) to influence the policy of a Government by intimidation or coercion or (iii) to affect the conduct of a Government by assassination or kidnapping.
16. Fourth proviso to section 497(1), Cr.P.C. Further suggests that after tentative assessment of evidence and keeping in view the nature of offence if it transpires that the act is callous, brutal or gruesome the doer of act can be termed as dangerous, desperate or hardened criminal and in this context observations of this Court in the case of Kadir Bux v. The State (1986 PCr.LJ 2184) are reproduced hereunder:-- "In my humble opinion a purely literary translation of the word 'criminal' would not be helpful in achieving the object for which the clause was inserted in the body of the section. The background of introduction of proviso four is that by operation of the, third proviso which leaves no discretion with the Court to deny bail to an accused, however, heinous the crime may be and, howsoever, severe his culpability in that crime may have been, a large number of under trials, who could never be risked to be sent out of prison, were set at liberty. It did not take long to realise that the indiscriminate release of criminals from jails offered further opportunities to these offenders to spread their nets and strike on new victims. Such criminals, who were apprehended by the law enforcing agencies after years of chase and hot pursuit were set at liberty to resume their trade. It was to control this situation that the 4th proviso was enacted as a proviso to the third proviso. It merely restores to the Courts some of the discretion from which they were completely stripped of by force of the third proviso."
17. Thus for extending that benefit of proviso (3) to section 497(1), Cr.P.C. Court has to glance over the act and manner in which the offence has been alleged to have been committed by the accused as benefit of third proviso to section 497(1) of Cr.P.C. Cannot be extended to accused falling in the categories enumerated in fourth proviso to section 497(1), Cr.P.C.
18. In the case of Kadir Bux (supra) it was further held as follows:-- "Now the Courts have a right to examine each case on its own facts and if they feel that the accused is a normal human being who has not been a habitual offender but has himself fallen victim to the crime rather than a source of the crime, then the Court would extend the benign effect of the third proviso and release such an accused on bail. But the case of heartless, desperate and dangerous criminal is to be examined not so much from the punitive point of view but moreso from a preventive point of view. He is a terror to the society and innocent men and women are to be protected from his claws. Such a hardened criminal though booked for the first time may have a long list of his exploits in the past. He may have been dodging the arm of law with impunity without any previous conviction but when once trapped and put on trial should be dealt with differently.
Could he be released on bail because the literal meaning of the word 'criminal' excludes him from the compass of the 4th proviso."
19. The case of Kadir Bux (above) was also bank robbery case and with following observations bail plea was dismissed by this Court:-- "This supports the view that 'a hardened, desperate or dangerous criminal' should not necessarily be a previous convict or may not have been adjudged to be so in some earlier proceedings. In this view of the matter in my humble opinion it would be open to the Court to examine each case on its own facts. If the accused person applying for bail has during commission of crime shown extraordinary and unusual courage and determination and has exhibited a beastly and cruel instinct of character, he can be described as 'desperate and dangerous criminal' and the Court can refuse to admit him to bail whether he has suffered any previous conviction or not and whether he has been previously adjudicated to be guilty or not?
' In the circumstances of the present case, the present accused with his five other accomplices the barged into the Bank in broad daylight at peak business hour and ignoring the armed guards and trusting on their skill to weild their own weapons, snatched the weapons, cf the Chowkidars, overpowered and overawed every one present and after bagging the booty made good their escape."
20. In the case of Umar Daraz v. The State (1997 SCMR 885) considering the case of Mounder v. The State (PLD 1990 SC 934) (relied upon by the learned counsel for the applicants/accused) Hon'ble Supreme Court has laid down the dicta that Court is authorised to take into consideration the evidence collected and other material produced by the prosecution in order to determine whether the accused is a criminal of the categories prescribed in fourth proviso to section 497(1), Cr.P.C.
21. In yet another case of Nazir Hussain v. Ziaul Haq and others (1983 SCMR 72), Hon'ble Supreme Court laid down the following dicta: "9. The ground of delay for grant of bail in cases falling within the prohibition contained in subsection (1) of section 497, Cr.P.C. Before the effective amendment, was undoubtedly controlled by the discretion of the Court concerned. The facts varied from case to case and accordingly the discretion exercised was creating some anomalies. That is why the Legislature intervened and the law was made more certain. One of the changes effected in the statute from the previous practice in the exercise of discretion, was that the grant of bail on expiry of certain specified period and under certain conditions was made a matter of right and not only of discretion. We do not agree with the learned counsel that the use of the word 'shall' in the third proviso, is in the meaning of 'may'. Learned counsel failed to notice that while in first proviso the word 'may' has been used, in the second and third the word 'shall' has been used with a view to highlight it. Moreover, reading 'may' for the word 'shall' in third proviso would be in large majority of cases to the detriment of the accused and his liberty, when it becomes due in the context of bail. We accordingly repel the argument of the learned Counsel and hold that word 'shall' in third proviso will have to be read in its ordinary sense
22. The perusal of record shows that applicants/accused alongwith their co-associates, duly armed with deadly weapons in broad daylight barged in the Bank. They overpowered the bank staff and guards on duty and after snatching their arms committed robbery of more than Rs.36,00,000, wrist-watch, golden rings, on the point of arms, after putting the entire staff in fear of death. While committing the robbery they also wrongfully restrained the bank staff and detained Manager and Cashier in the strong-room of the Bank. As such, first F.I.R., vide Crime No,4 of 1996, reproduced rein above, was promptly lodged. The police on receiving information with regard to the above incident, with the staff of the Bank went in pursuit of the culprits and after an encounter, which continued for about 1/2 hour apprehended present applicants/accused during day time with arms, ammunition and robbed property i.e, cash. The applicants/accused were identified by the staff of Bank and second F.I.R. Being Crime No,5 of 1996, reproduced hereinabove, was registered against them.
23. The scheme of law discussed above will show that now it is well-settled that while considering the bail plea on the ground of statutory delay Court has to take into consideration the evidence collected by the prosecution and if case falls within the purview of proviso (4) to section 497(1), Cr.P.C. The Court must refuse the bail.
24 The manner in which the offence is alleged to have been committed leaves no room for doubt that the accused are hardened, desperate and dangerous criminals and their act amounts to terrorism. We are of the considered view that they are not entitled to benefit of third proviso to section 497(1), Cr. P. C.
25. The rule of consistency is also not available to the applicants/accused as case of co-accused Ajmal is quite different and distinguishable from the case of the present applicants/accused. There was no iota of evidence against accused Ajmal except the word of applicants/accused before police to the eftect that he was an accomplice, therefore, Trial Court granted him bail.
26. The authorities Zahid Hussain Shah v. The State (PLD 1995 SC 49), Abdul Khaliq v. The State (PLD 1990 Karachi 448), Abdur Rashid v. The State (1998 SCMR 897), Khuda Bux alias Khudo v. The State (1997 PCr.LJ 917), Shekil v. The State (PLD 1997 Karachi 172) and Sadain v. The State (PLD 1998 Kar.
263), cited at the bar by the learned counsel for the applicants/accused are of no avail and help to them as the facts and circumstances of the cited cases are altogether different and distinguishable from the facts and circumstances of the present case.
27. The upshot of the above discussion is that the bail plea of applicants/accused merits no consideration and, consequently, their bail applications hearing Cr.B.A. No,289, Cr.B.A. 422 and Cr.B.A. 290 all of 1998 stand dismissed.
28. The observations made hereinabove are of tentative nature and the trial Court will not be influenced thereby in any manner at the time of final decision of the case and will be free to conclude and arrive at its own findings after evidence is recorded in the case.