1. ' MUHAMMAD ASHRAF LEGHARI, J.---By this Constitution petition, the petitioner has sought the cancellation of bail, granted to respondent 2/accused Anwar Ali alias Anwar by the learned Judge, Anti-Terrorism Court, Sukkur vide order dated 4-1-2001.
2. ' The brief facts of the prosecution case giving rise to this Constitutional petition are that the petitioner lodged F.I.R. At Police Station, Bandhi being Crime No,10 of 1999 on 6-3-1999, stating therein that Javed Iqbal is his maternal nephew and Nazir Ahmed is his cousin. The complainant is fieldman in Al-Noor Sugar Mills, Shahpur Jahania. On 5-3-1999 Javed Iqbal and Nazir Ahmed came to his house and informed him that they were going from Manharo to Bandhi for handing over the indent of sugarcane, to driver which they already loaded in trolley of the tractor. Thereafter, they did not come back to their homes. On the next day morning, complainant informed his neighbour Sher Muhammad Bhatti and apprised him of the above facts. He accompanied said Sher Muhammad to Bandhi where they received information that Javed Iqbal and Nazir Ahmed had left for Manharo after handing over the indent to driver. The complainant conveyed such information to Manzoor Ahmed, the father of Javed Iqbal. On 6-3-1999 the complainant came to know that the car of Javed Iqbal was found parked by Naushahro Feroze Police, at Dhawan Shakh Mori. The complainant proceeded to Police Station and lodged the F.I.R. Wherein he stated that Javed Iqbal and Nazir Ahmed have been abducted by some unknown culprits.
3. ' The F.I.R. Was initially registered under section 364, P.P.C. But on completion of investigation, the challan was submitted against respondent 2 and others before the Anti-Terrorism Court, Sukkur, under sections 365-A, 148 and 149, P.P.C. The respondent 2 Anwar Ali alias Anwar moved bail application on 6-7-2000 before the Anti-Terrorism Court, Sukkur which was rejected by order, dated 5-10-2000. The operative part of the order is reproduced hereinbelow:- "Perusal of the record shows that bail application of co-accused Sarwar Arain have been rejected by this Court on 22-7-2000. Accused Anwar Ali is alleged to have actually participated in the commission of the offence. He has been guarding over the victim duly armed with deadly weapon.
4. Abductees have specifically named the accused to be one of the culprits. There is no reasonable ground to believe that accused/ applicant has not committed the alleged offence. Consequently the bail application of accused Anwar Ali is hereby rejected."
5. ' The respondent accused filed his bail application before this Court but the same was not pressed and the following order was passed by this Court on 22-12-2000.
6. "Learned counsel for the applicant, by M.A-2404 of 2000, does not press the present application for bail as he intends to move the trial Court. Dismissed as not pressed."
7. ' The respondent 2 accused on 2-1-2000 moved bail application before the trial Court. After two days i.e, on 4-1-2000 the respondent 2 accused was granted bail by the same Presiding Officer (Mr. Zamirul Hassan Larik). The operative part of the is reproduced hereinbelow for convenience sake:-- "Perusal of the record shows that one witness had appeared on 19-12-2000 abductees had not appeared. Today one abductee and witness has appeared, complainant party has shown unwillingness to proceed with the case and submitted application that their counsel is not present, it appears that the complainant party wants accused to remain in the jail for maximum period.
8. Learned counsel for accused/applicant submitted that the accused/applicant was shown to the witnesses 15 minutes prior to the identification parade and such fact is shown by the Judicial Magistrate in the identification.
9. ' Keeping in view the above facts and circumstances of the case, accused is granted bail in the sum of Rs,1,00,000 (rupees one lac) and P.R. Bond in the like amount to the satisfaction of this Court."
10. ' The powers of this Court under sections 439, 491, 496, 498, 498-A and 561-A, Cr.P.0 have been expressly taken away by the Statute, therefore, the cancellation of bail has been sought through present Constitutional petition.
11. ' Looking towards the peculiar facts and circumstances of the present case, we are constrained to entertain this petition on Constitutional side.
12. ' It is contended by the learned counsel appearing on behalf of the petitioner/ complainant that the previous bail application moved on behalf of the accused was dismissed on merits by the same Presiding Officer of the Court on 5-10-2000.
13. ' The said order was challenged before this Court but the bail application was not pressed on 22- 12-2000. It is pleaded that on 2-1-2001, the bail application was repeated before the trial Court and on 4-1-2001 the accused was granted bail on flimsy grounds.
14. ' It is argued that accused is terrorist. He is required in so many criminal cases and his trial is ordered by Home Secretary to be held inside the jail. The trial Court has no power or competence to review the passed by him only three months back especially in the circumstances when the same order was challenged before this Court and the accused did not press the bail application on merits. It is contended that after 8 days of the withdrawal of bail application from this Court, the trial Court granted bail to the accused. The accused is facing trial in a heinous offence and he does not deserve to be released on bail on self-created grounds.
15. ' Mr. Ghulam Dastagir A. Shahani, learned Additional Advocate-General, Sindh does not support the impugned and concedes to the arguments of learned counsel appearing on behalf of the petitioner.
16. ' He further states that the Magistrate has written in the memo. Of identification test that respondent 2/accused informed him that he was shown by the police to the P.Ws. Prior to the test.
17. The Magistrate has not mentioned that any of the P.Ws. Stated before him that accused was previously shown to them or Magistrate himself noticed so.
18. ' Mr. Abdul Latif Memon, learned counsel appearing on behalf of the respondent 2 accused has argued that the witnesses were not attending the trial Court and, therefore, bail granted to the accused cannot be cancelled. It is contended that the accused was shown to the abductees, 15 minutes prior to the holding of identification test. The complainant party was avoiding to proceed with the trial and, therefore, the bail was rightly granted to the respondent 2/accused.
19. ' The perusal of material placed on record shows that the first bail application was dismissed by the trial Court on 5-10-2000 by an elaborate order. The said order was challenged before this Court but the bail application was not pressed and it was dismissed on 22-12-2000. It is well-settled that the grounds which were available to the accused at the time of first bail application and not pressed cannot be re-agitated. Thus, the same cannot be considered as fresh grounds in the second bail application. The reference in this regard can be made to the case of The State through Advocate-General, N.-W.F.P. v. Zubair and 4 others (PLD 1986 SC 173) wherein their lordships of apex Court have observed at paragraph 8 of the report as under:-- "It might be useful to mention here that the second or the subsequent bail application to the same Court shall lie only on a fresh ground, namely, a ground which did not exist at the time when the first application was made. If a ground was available to the accused at the time when the first bail application was filed and was not taken or was not pressed, it cannot be considered as a fresh and made the basis of any subsequent bail application. We may also point out, with respect to the learned Judge, who dealt with the second bail application that the mere fact that the learned Judge who had rejected the first bail application of the respondents with the observation that as far as the remaining petitioner (the respondents herein) are concerned no case had been made out for their release on bail, does not mean that the application had not been disposed of on merits. It must be assumed that he had considered all the pleas or grounds raised by the applicant's counsel before him and that the same had not found favour with him. It may be pointed out, with great respect that the notion that each contention raised before the Court in a bail application must be dealt with separately or repelled by recording elaborate reasoning, is totally misconceived. We are of the view that in the present case the learned Judge who dealt with the second bail application had, in fact, embarked on a review of the order of the learned Judge who had earlier dismissed the first bail application."
20. ' The accused is facing trial in an offence of abduction for ransom. The powers for grant of bail conferred upon the Courts created under A.T. Act, 1997 are very much restricted. The powers under section 30 (4) of A.T. Act, 1997 are not analogous to sections 497 and 498, Cr.P.C. Thus, the powers vested in the Special Court relating to bail are to be exercised with utmost care and caution in reasonable, justified and judicious manner keeping in view the intention of the Legislature. The learned Judge of the trial Court treated these powers as a toy and played with them as he liked. It appears that he was under the impression that his powers are unfettered, and superior Courts lack the supervisory jurisdiction. The learned trial Judge has also lost sight of the fact that the accused involved in the act of terrorism, is not even entitled to benefit of proviso (3) to section 497, Cr.P.C.
21. ' It will be pertinent to reproduce hereinbelow section 30(4) of the Anti-Terrorism Act, 1997:-- "30. Modified application of certain provisions of the Code. ---(1)
22. (2)
23. (3)
(4) An Anti-Terrorism Court shall not release an accused person on bail if there are reasonable grounds for believing that he has been guilty of the offence with which he has been and nor shall an accused person be released unless the prosecution has been given notice to show cause why he should not be so released and the accused has furnished sound sureties."
24. 'The plain reading of the above provision of law shows that the bail shall not be granted to an accused if Court comes to the conclusion that there are reasonable grounds to believe that accused is guilty of the offence with which he is charged.
25. (Underlining is ours).
26. ' The accused is facing trial in an offence falling under Terrorism Act and no finding has been specifically given by the trial Court to the effect that there are no reasonable grounds to believe that the accused is not guilty of the offence with which he is charged. The reference in this context can be had to the case of Mst. Resham Jan v. Abdur Rehman (1991 SCM R 1849). The relevant dicta is reproduced hereinbelow:--- "Regarding the aforenoted legal questions the learned Advocate-General, N.-W.F.P. Has stated that in future he would himself appear in the High Court in bail matters arising out of murder cases and that he would, in cases like the present one, plead the need for a finding to the effect that there are 'no reasonable grounds for believing that the accused has committed a non-bailable offence', if the bail is to be granted on the plea of 'further inquiry'. He has also undertaken to place before the Honourable Judges of the High Court the law laid down by this Court on this question."
27. ' Although the powers of this Court under sections 496, 497 and 498, Cr.P.C. Have been expressly taken away by the Statute but supervisory Constitutional jurisdiction is intact. This Court can interfere if finds that the Court below has acted illegally and capriciously in exercise of the powers vested in it.
28. ' In the case in hand the trial Court has acted in excess of authority ignoring the broad principles laid down by the apex Court for grant or refusal of bail as well as the intention of Legislature by promulgating the Anti-Terroism Act, 1997.
29. ' Merely . Because the complainant party is lethargic in proceeding with the case is no ground for the grant of bail. The delay must be shocking one. Such element is lacking in the present case.
30. ' The bail is a discretion and discretion cannot be exercised arbitrarily and in a capricious manner.
31. ' Resultantly, in order to avoid the abuse of the process of Court and secure the ends of justice, we are of the considered view that the impugned order requires interference.
32. ' For the foregoing reasons the , dated 4-1-2001 passed by the Special Judge, Anti-Terrorism Court is recalled and the bail granted to respondent 2/accused Anwar Ali alias Anwar is hereby cancelled. The petition stands allowed.
33. Bail cancelled.