1. ' This bail application has been filed on behalf of four accused involved in Crime No,21 of 1997 Police Station Fatehpur Thahim, District Shikarpur arising out of offences under sections 324, 353, 148 and 149, P.P.C. Read with section 13(d), Arms Ordinance, 1965.
2. ' Allegations in the aforesaid F.I.R. Are that the police party of Fatehpur Thahim went to the place of incident in Crime No,20 of 1997 through which two persons were killed and several persons were injured in an attack by Issanis on Kambranis where police found applicant No,1 Shah. Nawaz and Begelal Issani in injured condition with hatchets in their hands. They were arrested on the spot and were sent for medical treatment. It is further alleged in the F.I.R. No,21 of 1997 that the police went in chase for the arrest of the accused persons of Crime No,20 of 1997 and when they reached village Muhammad Alim Issani at about 18-35 hours, they were challenged by the accused party who started firing upon them. This encounter continued till the morning of 5th October, 1997. Till then, several police parties from Garhi Yaseen and Shikarpur were summoned. It is further alleged that when the police succeeded in rounding-up these accused persons they surrendered and some 14 persons including applicants Nos.2 to 4 were arrested and huge quantity of arms and ammunition, including Rocket Launchers, were recovered from the accused party. It is further alleged that from the place of Wardat some 50 empties of 7.60 bore, 35 empties of 7 m.m. Rifle, 5 empties of .303 bore and 27 empties of .12 bore cartridges were secured. Under these allegations, instant F.I.R. Was lodged.
3. ' In Crime No,20 of 1997, the F.I.R. Of which was lodged by Gul Muhammad Kambrani Jakhrani under sections 302/34, 148 and 149, P.P.C. Read with section 13(d), Pakistan Arms Ordinance, 1965, it is alleged that on 4-10-1997 at about 16-00 hours some 19 persons including the present applicants armed with klashnikovs and guns attacked his village and as a result of such attack, two persons from Kambranis, namely Dost Ali and Dilmurad were killed while two women were seriously injured.
4. It was in consequence of this alleged offence, when the police reached the place of incident and chased the other culprits, they in retaliation as alleged in the F.I.R. No,21 of 1997 opened fire and resisted their arrest for more than 18 hours. It is the last mentioned F.I.R. In which applicants have filed bail application on the plea of statutory delay in conclusion of trial.
5. ' We have heard Mr. Mazhar Ali M. Siddiqui, Advocate for applicants and Mr. Rashid Ali G. Shaikh, Advocate for The State. Mr. Mazhar Ali Siddiqui has contended that the applicants are themselves victim of aggression and have been falsely involved. He has passed this bail application on the sole ground of statutory delay. According to him all the present applicants/accused were arrested on 5-10-1997 and are in jail since then but still the trial has not concluded. It was further argued that one year's time is required for grant of bail on delay as required by the fourth proviso of 497, Cr.P.C.
6. In an offence arising under section 324, P.P.C. He has placed reliance on the following cases:--
(1) Wazir and another v. The State PLD 1986 Kar.
7. 646.
(2) Moundar and others v. The State PLD 1990 SC 934.
(3) Ghulam Sarwar v. The State 1990 SCM R 1045.
(4) Muhammad Sadiq and another v. The State 1996 SCM R 1654.
8. ' Mr. Rashid Ali G. Shaikh, learned counsel appearing for the State has conceded to the grant of bail in view of the above factual and legal position.
9. ' Learned Special Judge (Suppression of Terrorists Activities) Shikarpur has rejected the bail plea of some 16 persons vide order 23rd June, 1999 solely on the ground that these accused from their conduct as alleged in the F.I.R. Appears to be "desperate". Learned Judge has not discussed question of delay in the trial as provided in the fourth proviso. It is well-settled that an accused person would be entitled for the benefit of fourth proviso once he succeeds in proving that he does not fall within any of the classification as provided under IIIrd proviso to section 497(1), Cr.P.C.
10. However, it was contended by Mr. Mahar Ali Siddiqui that no sufficient material was placed by the prosecution to prima facie establish that these applicants are desperate. He has stated that the police report as well as report from jail authorities are in favour of the present applicants/accused.
11. We have considered arguments of both the learned counsel. In order to determine whether an applicant falls within the category of desperate, hardened criminal or a terrorist, the Court considering bail plea of such applicant can look into the allegations of the F.I.R. As well. Keeping in view the allegations of the abovementioned two F.1.Rs, wherein all the applicants have been implicated, their alleged acts and omissions constitute them to be dangerous and desperate. In the case of Jalal v. Allah Yar and another 1993 SCM R 525 Honourable Supreme Court declined to cancel the bail granted to the respondents by a learned single Judge of this Court, with the following observations:-- "7. We have gone through the F.I.R. And we find that even the manner of the commission of the offence committed by respondent No,1 in the above two appeals does not indicate that they were hardened, desperate or dangerous criminals. Respondent Allah Yar allegedly had fired one shot at the left arm of one of the deceased and so also Ghulam Rasool as per F.I.R. The above acts attributed to the above respondents do not indicate that they were desperate, hardened or dangerous criminals. If the above respondents could have killed the deceased in a brutal way by cutting the bodies into pieces or by indiscriminately firing by klashnikovs or would have dragged the dead bodies in order to disgrace the deceased and other members of the family, one could urge that the manner of the commission of offence was such which indicated that the respondents were hardened, desperate or dangerous criminals in terms of fourth proviso to subsection (1) of section 497, Cr.P.C., but this is not the case." (Emphasis added).
12. ' In the instant case the allegations of the F.I.R. No,20 of 1997 are that the present applicants attacked the village of Kambranis Jakhranis and after killing two people made their escape good.
13. Thereafter, the police party chased them in order to apprehend them which they resisted for more than 18 hours which resulted in summoning of nearly all Police Stations of the concerned district on the place of Wardat and it was only then they surrendered. In this encounter one constable namely P.C. Muhammad Sharif also suffered injuries. Recovery of huge quantity of arms including Rocket Launchers as well as recovery of huge quantity of empties from the place of Wardat, in all are sufficient material to hold that these applicants Nos.2 to 4 are desperate and dangerous. These accused are not entitled for grant of bail on the ground of statutory delay as they have failed to qualify under the third proviso to section 497(1), Cr.P.C. In our tentative view they are dangerous and desperate persons.
14. ' In so far as the case of applicant No,1 namely Shah Nawaz son of Muhammad Yousuf Issani is concerned, he was arrested in the F.I.R. No,20 of 1997 before the police started chasing the accused of F.I.R. No,21 of 1997. In our view the allegations of police encounter as alleged in F.I.R. 21 of 1997 cannot be extended to the applicant No,1 as he was neither arrested alongwith the other co- accused nor anything was recovered after alleged police encounter. He was already in police custody at the time of alleged police encounter. Since his bail plea under F.I.R. No,20 of 1997 is not before us we would not like to express any opinion about his character and nature as to hardened and desperate criminal but would like to say that for the present this applicant/accused namely Shah Nawaz is entitled to bail which is accordingly granted upon furnishing one solvent surety of Rs,2,00,000 with P.R. Bond in the like amount to the satisfaction of the trial Court. Bail plea of the remaining applicants Nos.2 to 4 are hereby dismissed with the directions to the trial Court to record evidence of at least two prosecution witnesses including the complainant within a period of three months and thereafter, it will be open to the applicants to repeat bail if they chooses so. All observations made hereinabove are tentative in nature and shall not prejudice either the trial or any subsequent bail applications.