1. ' Granted but subject to all just exceptions.
2. ' The facts leading to present application for bail are that applicants/accused Umer Hayat, Najeeb Akhtar, Muhammad Rehman and Nusrat Mehmood are facing trial in a Sessions Case before IVth Additional Sessions Judge, Karachi East arising out of F.I.R. No,342 of 1997, dated 11-12-1997 of Police Station K.I.A. District Karachi East under ,section 364 and 34, P.P.C. The contentions of F.I.R. Lodged by Muhammad Imtiaz are reproduced below:- ' "I am residing in the aforesaid factory since last one year. After getting the towels from subcontractor Shoukat Ali I used to get them finished and finally prepared through labourers. I am permanent resident of village Khas Kotli Satian, Tehsil Kotli, District Rawalpindi. From the month of October till 27th November Umar Hayat (2) Nasir Mehmood, (3) Abdul Rehman, (4) Musrat Mehmood (5) Naeem, (6) Najeeb, (7) Atiqur Rehman, (8) Dawood worked with me. Their debt its out standing against me. On that day I sent for them in the factory. They came alongwith their two companions viz Parveez and Najeeb at about 8.30 p.m. In the night. I talked with them and apprised them that I have not received that payment and requested them for time but they did not pay any heed to it and started abusing and causing the fist and kicks, blows to me. In the meanwhile Shoukat Ali, Manzoor Abdul Qayum, Shamshad Ali also came who rescued me. These persons after causing harassm ent to me and in order to recover their amount kidnapped Contractor's younger brother Shamshad Ali alias Muna aged about 18 or 19 years by putting him in the Taxi. These persons are resident of Reeti line Sultan Abad. I have searched for them but uptill now no clue has been found. Now I have come for report. I complain that aforesaid persons have kidnapped Shamshad Ali brother of my contractor after putting him in Taxi and have taken him away to some secret place. Report is correct."
3. ' Applicant/accused applied for bail before the trial Court but the same was refused by impugned order dated 19-1-1998.
4. ' It is contended by the learned counsel for the applicant/accused that F.I.R. Is delayed by 4 hours whereas distance of scene of offence from police station is two kilo meters; that the Report is not lodged by aggrieved person and only Shoukat Ali Contractor, brother of kidnapee Shamshad Ali is competent to lodge report; that the kidnapee was not recovered from the possession of appliCant/accused but he was let off by them, and five minutes prior to registration of F.I.R. He appeared at the police station; that no offence under section 364, P.P.C. Is made out. Moreover, no demand for ransom was made; that watchman of factory is no examined by the police during the course of investigation; that the case is out come of enmity. It is therefore urged that the applicant/accused are entitled to bail.
5. ' Mr. Ashiq Hussain Mehar, learned counsel for the State has vehemently opposed the grant of bail.
6. He has contended that the accused are involved in a case of kidnapping which is a heinous offence; kidnapee Shoukat Ali has fully implicated applicant/accused in his statement under section 164, Cr.P.C.; that the applicants/accused also caused injuries to kidnapee and Medical evidence supports the factum of injuries, therefore, applicants/accused are not entitled to bail.
7. ' I have heard the learned counsel for the applicants/accused and learned State counsel as well as perused the material and impugned order.
8. ' It is an admitted position that dispute over the payment of dues was subsisting between the parties which may be motive for the commission of alleged act of kidnapping. Complainant has stated in the F.I.R. That he went in search of accused and kidnapee and when he failed to get any clue, then he rushed to police station and lodged F.I.R. It is human nature that under such situation and circumstances when one is kidnapped or abducted his near and dear ones on the first instance try to locate his whereabouts or place of detention and then take any further step. Hence, looking to the peculiar facts and circumstances of the case, I am of the view that plausible explanation for delay has been given in the F.I.R. So far the contention that F.I.R. Is lodged by the complainant and not by the brother of the kidnapee is concerned, I may point out that in the present case as per the contents of F.I.R., complainant was an aggrieved person, moreover offence of kidnapping is a cognizable offence, and under section 59, Cr.P.C. Any private person in whose presence any non-bailable or cognizable offence is committed, or he has any such knowledge, that person can arrest and is bound by law to report and produce the arrested person at the nearest police station, therefore, this contention of the learned counsel is misconceived.
9. ' The other pleas that kidnapee was let off five minutes prior to the registration of F.I.R., no ransom was demanded, watchman of factory was not examined by the police during the course of investigation or no offence under section 364, Cr.P.C. Is made out is concerned, are matters which require deeper appreciation of evidence. It is not permissible under law, at this stage, as for the purpose of bail only tentative assessm ent is to be made.
10. ' The complainant and kidnapee have fully implicated the applicants/accused in the commission of alleged offence and case has not so far proceeded as is evident from the impugned order.
11. Under the circumstances, the case of applicants/accused is covered by prohibitory clause of section 497(1), Cr.P.C. And they are not entitled to grant of bail. Accordingly, bail application is dismissed.
12. ' The observations made hereinabove are of tentative nature and they may not be considered while finally disposing of the main case. The trial Court will be at liberty to reach its own independent findings after evidence is recorded, without in any manner being influenced by what- ever is observed above.