' The facts leading to the present application for cancellation of bail are that respondent No,1 Nasir Khan alias Gudoo is facing trial under section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, in Sessions Case No,443 of 1996, pending before the learned 1st Additional Sessions Judge, Karachi (East), arising out of F.I.R. No,437 of 1996, dated 18-10-1996 of Police Station, Korangi, Karachi (East).
2. The brief facts of the prosecution case, as disclosed in the F.I.R., lodged by one Hyder Ali, are reproduced hereinbelow:-- ' "I am residing at the aforesaid address. I own a Kiryana shop at Street No,1 on 16-10-1996 at about 8.30 p.m. I had to go outside on motorcycle and was standing in front of my house with my children when Nasir alias Gudoo and Shahid policemen came and asked me that I should accompany them to police station. I told them that no report has been lodged at police station against me.
Nasir Khan got down my children from the motor-cycle and he sat thereon. He took me to another street and told that I am earning lot, therefore, he should be paid Rs,10,000. I declined. He told me that now matter is over and he would see to it. They left me and went away. On the same night at about 3.00 a.m. While I was sleeping in my house when there was a knock on my door. I peeped from window and saw one white colour Suzuki mobile whereon Landhi Police Station was written, parked in front of the door of my house. There were four persons. One was in uniform, Nasir Khan, Shahid and third person was in civil dress. Due to fear I scaled the wall and concealed myself in the adjoining house of my neighbourer. My wife Mst. Sultan Zulekha opened the door. I was seeing from the window of neighbourer's house. Four persons entered in my house. They were Nasir, Shahid policemen, one who was not in uniform and the third one in civil dress. They remained inside the house for about 20 minutes. They all were armed. After about 20 minutes I heard the sound of the departure of mobile. Thereafter, I went to my house. My wife informed me that the culprits directed her to keep mum, thereafter they confined her and children in a room of the house. They took the search of the house and after breaking open the door of Alamirah took away Rs,55,000 cash, and one Rado *Star Watch, while going they directed her to ask me to meet with Nasir Khan in the morning. In the morning, I apprised the neighbourers and then went to Moulana Ahmed Hussain, who took us to S.S.P. East. He talked with Dy. S.P. Korangi on phone and then sent us to Dy. S.P.
Korangi. As per the direction of S.S.P. West and Dy.S.P. Korangi, I have come for report. My wife had told to Nasir Khan etc. That her husband has gone to Moulana Abu Talib and they may meet him there but they paid no heed to it. Now, I have come for report. My complaint in that aforesaid accused on the point of fire arms have taken away my cash and wrist watch. Action may be taken.
I have heard the report, it is correctly recorded."
3. The respondent No,1/accused applied for bail before the trial Court and he was granted bail by impugned order, dated 30-6-1997.
4. It is contended by the learned counsel for the applicant/complainant that the name of the respondent No,1/accused transpire in the F.I.R. And specific role has been ascribed to him; that the respondent/accused was sub-Inspector in Pakistan Qaumi Razakar (P.Q.R.) and his act amounts to terrorism; that the robbed property was recovered from his possession; that he has issued threats of dire consequences to the applicant/complainant; that the order of the trial Court is perverse, illegal and liable to be set aside.
5. Mr. Muhammad Iqbal Ahmed, learned counsel for respondent No, 1/accused has contended that the alleged Rado Star Watch and full amount i.e, Rs,55,000 were not recovered from the possession of the respondent No, 1/accused but only Rs,2,000 were recovered; that four persons were nominated as accused in the F.I.R. But only two have been sent-up, therefore, case necessitates further enquiry as contemplated under section 497(2), Cr.P.C. And respondent No,1/accused was rightly granted bail.
6. Mr. Ashique Hussain Mehr, learned counsel for the State has adopted the arguments of the learned counsel for the applicant/complainant and has further contended that the cash Rs,2,000, Rado Star Watch and identity card of the applicant/complainant were recovered from the possession of respondent No,1/accused on 2-6-1996, therefore, the impugned order merits interference and is not sustainable under law.
7. I have carefully considered the arguments of Mr. Mazhar Ali B. Chohan, learned counsel for the applicant/complainant, Mr. M. Iqbal Ahmed, learned counsel for the respondent No,1/accused and Mr. Ashique Hussain Mehr, learned counsel for the State. I have also perused the impugned order and material place on record.
8. The respondent No,1/accused was admittedly sub-Inspector of P.Q.R., which Organisation is creation of statue (Ordinance XXVIII of 1965). The Members of P.Q.R. Are public servants, as defined under section 9 of the Ordinance XXVIII of 1965. The duty of P.Q.R. Personnel is to maintain law and order, public security and help the masses during natural calamities. The spirit of the Ordinance XXVIII of 1965 appears to be that the members of P.Q.R. Have to protect the people also from the bandits and outlaws but unfortunately in this case the respondent 1/accused, who was sub- Inspector of P.Q.R. Has committed robbery alongwith his companions. Prima facie, the protectors of law have themselves violated the same.
9. The material placed on record shows that the name of respondent No,1/accused transpires in the F.I.R. And specific role of committing robbery alongwith his companions has been ascribed to him. The robbed property i.e, case Rs,2,000 out of cash Rs,55,000, Rado Star Watch and national identity card of the applicant/complainant were secured from his possession. Neither, any enmity has been suggested nor it is borne out from the record. Applicant/complainant and other independent private persons have fully implicated the respondent No,1/accused. The present application under section 497(5), Cr.P.C. Is supported by the affidavit of applicant/complainant. It is specifically stated therein that respondent No,1/accused issued threats of dire consequences to him. The relevant para. Is reproduced hereinbelow for ready reference:-- ' "It is further submitted that on 23-8-1997 when the case was fixed before the trial Court the complainant had gone to Court where respondent No,1 on seeing the applicant in Court premises was very much annoyed and while threatening him stated that he will not remain in jail for more days but is coming very soon and that you do not know me who I am and that on coming out I will teach you, your family and witnesses a lesson. The applicant made such application to S.H.O. City Court and other concerned police stations in this regard. The applicant seriously apprehends that on coming out of jail he will cause harm to them, he is very dangerous, desperate, hardened criminal and terrorist and so many cases are pending against him in various Courts."
10. The respondent No,1/accused has neither filed any counter-affidavit nor comments to controvert the allegations made in the application/affidavit. It is settled law that if the allegations made are not disputed presumption would be that the same are true and they are not rebutted by the adversary.
11. In the case of Mst. Resham Jan v. Abdur Rehman (1991 SCMR 1849), Hon'ble Supreme Court cancelled the bail of accused on the ground that accued issused the concession of bail by threatening the witnesses.
12. It will be pertinent to see whether trial Court has rightly granted bail by way of exercising judicial direction or has deviated from the principles or guide lines laidfp down by the Supreme Court for grant or refusal of bail. Before ariving at any such conclusion, it will be more appropriate to glanece over the order. In this context, the operative part of the order is reproduced herein-below: -- ' "It is an admitted fact that as per contents of F.I.R., the four culprits were nominated among them one was in police uniform and all the culprits appeared at the house of complainant in police mobile but I am surprised that at the time of challan, police challaned two private persons and not challaned the police officials. Therefore, in these circumstances, when no objection is given by the State, it is a case of further enquiry and accused/applicant Nasir Khan alias Gudoo is granted bail in the sum of Rs,70,000 with P.R. Bond in the like amount, but without prejudice to the merits of the case."
13. The plain reading of the operative part of the order reveals that the only thing which weighed with the trial Court for the purpose of further enquiry was that four persons were nominated in the F.I.R. Alongwith police men but only two private persons were sent-up and no objection given by the State counsel. In my view these are not the cogent reasons for the purpose of further enquiry as contemplated under section 497(2), Cr.P.C. Superior Courts have time and against laid down the guidelines in this context and there are plethora of authorities on this aspect. The Courts should keep in mind those guidelines while granting or refusing the bail.
14. In the case of Arbab Ali v. Khamiso and others (1985 SCMR 195), it was observed by Hon'ble Supreme Court as under:-- ' "There are certain other features also in this case which have not been attended in the High Court before giving a verdict that it was a case of ' further inquiry'. It needs to be clarified that bail can be allowed (in a case otherwise allegedly falling under the prohibition contained in subsection (1) of section 497 under subsection (2) of section 497, Cr.P.C. When there are sufficient grounds for further inquiry into the guilt of the accused but only on the condition when the Police Officer or the Court at any stage of investigation, inquiry or trial, as the case may be, comes to a definite conclusion that there are no reasonable grounds for believing that the accused has committed a non-bailable offence. Without this finding bail cannot be allowed under subsection (2) on mere ground that there are sufficient grounds for further inquiry. This aspect of the relevant law has also not been brought to the notice of the learned Judge of the High Court."
15. In yet another case of The State v. Aziz alias Abdul Aziz (PLD 1985 Karachi 27) a Division Bench of this Court observed as follows:-- ' "In order to hold an accused person entitled to the benefit -of section 497(2), Cr.P.C. Two conditions must be satisfied namely:--
(a) that there are no reasonable grounds for believing that the accused has committed a non- bailable offence; but
(b) that there are sufficient grounds for further inquiry into his guilt.
' The conjunctive 'but' appearing in-between the above two sentences indicate that the same are to be read conjunctively and not disjunctively. Consequently finding as to existence of condition
(a) is sine qua non for holding that there are sufficient grounds for further inquiry into the guilt of the accused."
' In that case it was further observed at pages 34, 35, 36 and 37 as quoted below:-- ' It may, however, be clarified that before the case of an accused person is found to fall within the ambit of 'further inquiry' under subsection (2) of section 497, Cr.P.C., the Court should first come to the definite conclusion that there are no reasonable grounds for believing that the accused has committed a non-bailable offence. After coming to this conclusion only the Court is entitled to embark upon determination of the question whether any of the circumstances exist which bring the case of the accused within the ambit of 'further inquiry'.
' For the purpose of understanding the correct import of the words 'further enquiry' as used in subsection (2) of section 497, Cr.P.C. It would be necessary to read the provisions contained in subsection (1) and subsection (2) of section 497, Cr.P.C. In juxtaposition. It is a cardinal principle of interpretation that in the same statute, moreso in the same section if two divergent principles are stated for the grant or refusal of relief the Court has to read such principles in juxtaposition and attempt to find out a method whereby fusion could be created between the seemingly different criterion laid down in the two provisions. What is more, redundancy or conflict cannot be easily ascribed to any provision contained in legislation.It must first be observed that before the words 'further inquiry' the subsection states that it should appear to the Court that there are not reasonable grounds for believing that the accused has committed a non-bailable offence. Unless a Court comes to the conclusion that there are no reasonable grounds for believing that the accused has committed a non-bailable offence the Court cannot enter into the question of sufficiency of grounds for further enquiry. In fact the question of further enquiry would only arise if the Court comes to the conclusion that reasonable grounds do not exist for believing that a person has committed a non-bailable offence. On the other hand if the Court comes to the conclusion that there are reasonable grounds to believe that the accused has committed the offence there is no question to Court holding a further enquiry into that matter for the purposes of grant or refusal of bail. Taking the other view would be palpable abroad. In these circumstances the only reasonable conclusion is that the question of a case requiring further enquiry can come up for consideration only if the Court is of the view that reasonable grounds do not exist for believing that the accused has committed an offence.The next question that arises is as to the material on which the Court can arrive at a conclusion that reasonable grounds exist for believing that the accused has committed such an offence. In that context the material is what would be available on the judicial record, and in the police papers if also available, and what emerges from section 164, Cr.P.C. Statements recorded at pre-trial stage. It is duty of the Court to examine these documents and if on a perusal of these documents a conclusion could be reached that there are reasonable grounds to believe that the accused has been guilty of an offence punishable with the serious sentences provided in law it is the bounden duty of the Court to refuse bail. On the other hand if all the material as is stated fails to convince the mind of the Judge that there are reasonable grounds to believe that the accused is guilty of an offence punishable with these sentences he would be justified in granting bail 4'
16. In the case in hand the learned trial Judge without arriving at the conclusion that there are reasonable grounds to believe that accused is not guilty of the offence has granted bail by simply holding that the case necessitates further enquiry. This approach is not warranted by law.
17. It also appears that the learned Judge was influenced by the no objection given by the State Counsel. The opinion of State counsel is not binding on the Courts. The Courts, after hearing both the sides, have to form their own independent view without being influenced by the opinion of either parties. The opinion of the Court should be just, sound and based on proper assessment of law and facts. The order of the trial Court in the case in hand is not based on proper reasoning for the purpose of further enquiry as contemplated under section 497(2), Cr.P.C.
18. The upshot of the above discussion is that the respondent No,1/accused is not entitled to bail as, prima facie, there are reasonable grounds to believe that he is guilty of the offence with which he is charged.
19. Consequently, present application for cancellation of bail is accepted and the to respondent No, 1/accused, by the learned First Additional Sessions Judge, Karachi (East) on 30-6-1997, is hereby cancelled.
20. The observations made herein above are of tentative nature and the trial Court will not be influenced thereby in any manner whatsoever at the time of final decision of the case it will the free to conclude and arrive at its own findings on merit, after evidence is recorded in the case.
Bail cancelled.