1. ' The facts leading to present application for bail are that applicant/accused Ali Akbar is facing trial in Sessions Case No,179 of 1998 before learned Vth Additional Sessions Judge, Karachi South. The said case has arisen out of F.I.R. No,32 of 1998 of Police Station Darakshan, Karachi which was registered under sections 395 and 34, P.P.C.
2. ' The brief facts of the prosecution case as stated in the F.I.R. Lodged by Muhammad Irshad are that complainant is serving as a driver with one Seth Mustafa Memon. At about 7-15 p.m. While complainant was parking his car, six persons duly armed with fire-arms entered in the house. They overpowered the complainant and cook Ghulam Nazir and tied their hands on the back side. Out of them three culprits went on the roof of the bungalow where wife of their employer was walking.
3. They brought her on the ground floor and asked her to unlock the room: She opened the door due to fear of fire-arms. Accused then took away golden ornaments, V.C.Rs, Dish Receivers, Camera, Video Camera, Watches, Deck, Tape Recorder in the car of his employer. The accused appeared to be Sindhis. Seth Mustafa Memon the employer of the complainant had gone abroad for performing Umra.
4. ' The applicant/accused applied for bail before the trial Court but his bail plea was rejected on 17- 7-1998.
5. ' The applicant/accused also applied for bail before this Court but his bail plea was declined by order, dated 10-11-1998.
6. ' I have heard Mr. Sathi M. Ishaque, learned counsel for the applicant/accused and Mr. Syed Jalil A.
7. Hashmi, learned Assistant Advocate-General on behalf of the State. The latter conceded to the grant of bail.
8. At the very outset the learned counsel for the applicant/accused stated that he pressed this bail plea on the ground of statutory delay as on merits bail application was already dismissed by this Court on 10-11-1998. He argued that applicant/accused was arrested on 10-4-1998 and that although about 21 months have lapsed but his trial has not yet concluded. He placed reliance on the following authorities in support of his contention:--
(i) Amir Qadir v. The State 1995 PCr.LJ 547, (ii) Muhammad Ameen v. The State 1995 PCr.LJ 637, (iii)
9. Zahid Hussain Shah v. The State PLD 1995 SC 49, (iv) Muhammad Yousuf v. The State 1999 PCr.LJ 501,
(v) Ali Hassan alias Mithu v. The State 1997 PCr.LJ 411, (vi) Jaggat Ram v. The State 1997 SCM R 361.
10. The perusal of the record shows that applicant/accused alongwith his companions barged into the house of complainant party and committed dacoity at gun point. They forcibly took away valuable property worth lacs of rupees from the house of Seth Mustafa in the car belonging to him.
11. ' In the circumstances the ground of statutory delay is not available to the applicant/accused looking towards the peculiar facts and circumstances of the case. Proviso (3) to section 497(1), Cr.P.C. Is controlled by proviso (4) to section 497, Cr.P.C. 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 fell within the purview of proviso (4) to section 497(1), Cr.P.C. Court can refuse bail.
12. ' The act of robbery/dacoity and car-snatching amounts to terrorism. In this context I am fortified by the decision of this Court in case of Rizwan Hassan v. The State 1999 M LD 2293. This decision was upheld by the Honourable Supreme Court in unreported Criminal Petition No,41-K of 1998. I am also fortified by the unreported D.B. Decision of this Court in case of Dhani Bux and others v. The State Criminal Bail Application No,289 of 1998 and Sahahee v. The State reported in 1999 PCr.LJ 1062.
13. ' Moreover, the applicant/accused has not filed the case diaries of the trial Court from which it could be found out that trial Was not delayed on account of any act or omission on the part of the applicant/accused or any other person acting on his behalf.
14. ' The authorities cited at bar by the learned counsel for the applicant/accused are of no avail to him as the facts and circumstances of cited cases are distinguishable from the facts and circumstances of the present case.
15. For the reasons stated hereinabove, the bail plea of the applicant/accused merits no consideration. Consequently, the bail application stands dismissed.
16. ' The observations made hereinabove are, however, 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 it will be free to arrive at its own finding after evaluating the evidence which is recorded in the case at the stage of trial.