1. The present applicant is facing trial in the Court IXth Additional Sessions Judge, Karachi (South), in an offence under section 17 (3) of the Offences Against The Property (Enforcement of Hudood)
Ordinance, 1979, arising out of F.I.R. No 79 of 1997 of the Frere Police Station, Karachi. His bail Plea on the merits as well as on the ground of statutory delay was dismissed by the learned Trial Court vide its Order dated 15-9-1998 against which he has preferred the instant bail application.
2. On 13-4-1997, at about 8.00 p.m. An F.I.R was lodged with the Frere Police Station by the complainant namely, Hidayatullah Khan, alleging that while sitting in the Car No, APP 824 and waiting for his brother-in-law at about 5.00 p.m. Before the Pakistan American Cultural Centre Karachi two youngsters came who had T.T. Pistols in their hands asked him to shift to the other side; one of the accused sat on the driving seat and the other sat on the rear seat; that they drove him to the Zinda Pir, Railway Colony, where his eyes were opened and they asked him to leave the said car; that they both were speaking Urdu language, and were wearing Shalwar Qameez and white opticals. Mr. Tanoli has filed certified copies of the charge-sheet showing that on 10-7-1997 charge sheet was filed before the Trial Court showing present applicant and another person Ashique Hussain in column 2 as accused under custody while one Ahmed Ali Shah was shown as absconder with red ink.
3. I have heard Mr. Naeem Khan Tanoli, Advocate, for the accused and Mr. Dilawar Hussain, Advocate for the State. It was submitted that the present applicant accused was firstly arrested by the Ghotki Police Station on 10-5-1997, in the F.I.R. 95 of 1997 of Ghotki Police Station alongwith two more accused as they were found in the same stolen 'car. Subsequently, the present applicant was shown to have been arrested in the instant F.I.R. On 24-5-1997. Mr. Tanoli has filed certified copies of the Diary Sheets of the Trial Court from the date 23-6-1997 till 15-9-1998, in order to show that till their date the case had not been proceeded and that the delay caused was not on the part of the present applicant. It was argued by Mr. Tanoli that from the date of his arrest applicant/accused namely, lqbal Ahmed, who is a resident of North Karachi, is being detained at the Central Prison, Sukkur and had never been produced before the Trial Court at Karachi which submission appears to be correct. The learned counsel for the State has also endorsed this claim after perusal of the Diary Sheets of the Trial Court. Mr. Dilawar Hussain, however, has vehemently opposed grant of this bail application on the ground that the act of car santching falls within the definition of terrorism and the accused being a terrorist is not entitled to the benefit of third and fourth provisos to section 497, Cr. P.C.
4. Mr. Naeem Tanoli has argued that from the acts attributed to the present applicant in the F.I.R., it does not appear in any manner that any act of terrorism was committed. He further stated that F.I.R. At Police Station Ohotki was lodged under section 412, P.P.C., and again such offence does not make the present applicant a hardened, dangerous and, or desperate criminal or a terrorist. He has placed reliance on the cases Fazal Muhammad v. The State (PLD 1998 Karachi 203) and Sher Ali alias Sheri v. The State (1998 SCMR 190). He has also placed reliance on an unreported case Muhammad All alias Javed v. The State (Cr. Bail Application No,629/98) where my learned brother Shabbir Ahmed, J. Granted bail to the accused facing trial under section 17(3) of the offences Against Property (Enforcement of Hudood) Ordinance 1979, who at the same time was also involved in Crime No,100 of 1997. The rule laid down by a Division Bench of this Court in the case of Fazal Muhammad (supra) was followed by the said learned Judge.
5. In the case of Fazal Muhammad (supra) the applicant was also involved in the same offence under section 282/342, P.P.C. Read with section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 as of the instant case, where allegation against the accused was that he snatched an oil tanker on the National Highway on the point of a klashnikov. Police filed challean before the Court of Special Judge (S.T.A.) at Sukkur, where the bail application of accused Fazal Muhammad was rejected who preferred bail before a Division Bench of this Court on the grounds of statutory delay. In the case of Fazal Muhammad (supra) reference was made to the cases Nazir Hussain v. Ziaul Haq (1983 SCMR 72) and Zahid Khan v. The State (PLD 1995 SC 49) The State v.
Ghulam Sarwar (1990 SCMR 1045) whereafter bail was granted to the accused on the following consideration:-- ' Delay in conclusion of trial is one of the grounds for grant of bail in view of the third proviso to section 497, Cr.P.C. Subject to the provisions of the fourth proviso to section 497, Cr.P.C. For establishing the accused/applicant as a hardened, desperate or dangerous criminal, the prosecution is required either to produce evidence of his past involvement in criminal activities, his association with criminal commission of the crimes and conviction, therefore, in the past or to show that the offences in respect of which he is facing trial has been committed in such a daring, dangerous and ferocious manner so as to suggest least respect for law and the desperate, reckless and defiant attitude of the accused/appelicant. No doubt that the manner of commission of the offence in question is suggestive of planning and scheming as well as show of and use of force but the elements of ruthlessness, desperation and terrorisation are lacking. The contents of the F.I.R. Reveal that the accused/applicant did not resort to terrorism or ferociousness to frighten the complainant and P.W. Rafiq in committing the said offence of dacoity, They relied more on deceit and falsehood in committing the said offence. Therefore, the planning and methodology applied by the accused/applicant and the co-accused does not warrant an inference of the accused/applicant being hardened, desperate or dangerous criminal. It is, thus, established that there is no impediment on allowing bail to the accused on the ground of delay in conclusion of trial within the period for one year as per clause (a) of the third proviso to section 497, Cr.P.C. It is a settled principle that when the case of an accused is covered by the third proviso then the grant of bail to him is not discretionary with the Court but the accused is entitled to the same as of right..........
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6. I have heard both the learned counsel at length and have also gone through the case file. From the perusal of the record, I am of the tentative view that allegations made in both the F.I.Rs,, in no manner, show that the present applicant is involved in any such act through which he could be called a desperate, hardened or dangerous criminal or a terrorist. Now, it is more than 18 months that he is in prison and the trial has not yet commenced. Not even on a single occasion this accused was produced before the Trial Court; therefore, the delay caused in the conclusion of trial cannot be attributed to the present applicant and he is entitled for bail. I am fortified in my view by the rule laid down by the Hon'ble Supreme Court in the cases Sher Ali (supra). There is no likelihood of the commencement of the trial in the near future and or its conclusion. Perusal of the report dated 31-8-1998 of the Superintendent, Central Prison, Sukkur, which was filed before the Trial Court and a certified copy of the same has also been filed in this Court, indicates that this accused is not involved in any other case except as mentioned above and that his conduct within jail precinct was found satisfactory. In these circumstances, there appears no reason not to grant bail to the present applicant/accused on the ground of the statutory delay in the conclusion of the trial.
7. This bail application was accepted through a short order on 31-12-1998 and accused Iqbal Ahmed son of Iqrar Ahmed, was ordered to be released on bail if he is not required in any other case, subject to furnishing of one surety of rupees two lacs and P.R. Bond of like amount to the satisfaction of the Nazir of this Court. Above are the reasons for the said short order. Bail granted in the above terms.