' Applicants Ghulam Mehboob, Bashir Hussain and Aurengzeb have been arrested for an offence punishable under sections 436/427/34 read with section 324, P.P.C.
2. The F.I.R. Was recorded at 9-00 p.m. On 6-1-2002 incorporating the written complaint of complainant Irfan Bashir, Human Resources Manager of Pearl Continental Hotel, which runs as under:- "6th January, 2002. Station House Officer Civil Lines Police Station, Karachi.
' Subject: F.I.R. In respect of fire on 6-1-2002 at 4-45 a.m. In Pearl Continental Hotel, Karachi.
' Dear Sir, ' This is to inform you that today there was incident of arson through tire in the hotel at about (6-1- 2002) 4-45 a.m. Initially in the basement area of hotel, outside the laundry Department and in front of service elevator. The fire; engulfed the air-conditioner ducting causing loss of property and Damage in the Laundry, Department, Housekeeping, Store in the basement, whole electricity wiring till 9th floor, all AC ducts from basement to 3rd floor and there was smoke and dust from basement. To top roof Restaurant. Board room etc. Damage also occurred to service lifts, guest elevators, carpets in all floor and crockery, Lenin. Consequently there was a power shutdown and the guests had to be evacuated in emergency. It is clear a wilful and deliberate attempt to cause murder to our guests and cause wilful sabotage.
' The hotel as a result of this sabotage has suffered business, financial and irreparable image loss.
This was a direct attempt on the lives of the app.234 guests and employees of the hotel. Further, it is an act of highest degree of sabotage, terrorism, attempted murder. This is all in continuation with the previous activities undertaken by and at the behest of Pearl Continental Hotel Workers Union which were also documented by way of caution letters and complaint tr the police. Station station (copies attacheu). The said union as part of their subversive plan had also held a meeting 5-1- 2002 at app 5-00 p.m. At the registered office of the union as permission to hold a meeting in the hotel premises was refused. The office-bearers had earlier threatened the management to withdraw the charge-sheets earlier issued for commission of acts of misconduct. Copies of the charge-sheets to worker is attached. All earlier letters addressed to various official including union earlier illegal activities are also attached.
' It is submitted, therefore, and strongly requested that action as per law may kindly be taken.
Attention is also invited to complaint dated 3-1-2002 earlier lodged with Civil Lines Police Station.
Copy attached.
' Very truly yours ' For Pearl Continental Hotel ' Human Resources Manager (Wan Bashir sio Dr. Bashir Hussain)"
3. The investigation was initially taken up by S.H.O, Police Station, Civil Lines but on 9-1-2002 it was transferred to CIA Police under a letter referred to in the diary dated 9-1-2002 of CIA. The present- applicants were arrested on 21-1-2002 on the basis of statement of two witnesses recorded under section 161, Cr.P.C. Namely Muhammad Nadeem and Muhammad Irfan who happened to be workers of a private contractor. They alleged that they saw the applicants who set on fire the cloth pieces contained in a bucket.
4. Mr, Muhammad Ilyas Khan, learned counsel for applicants Bashir Hussain and Aurenzeb advanced the bail plea on the grounds that the F.I.R. Is delayed by 16 hours yet nobody has been nominated therein; the applicants were already in custody of police in another crime and at a very late stage the 'witnesses were set up; there is 15 days delay in recording statements under section 161, Cr.P.C. And that the Pearl t Continental management has tried to secure an insurance claim by way of converting the matter of electric short circuit into case of arson. He further contended that if the fire emanated from pieces of clothes in a plastic bucket then there was no possibility of recovery of the said bucket and the pieces of clothes. Lastly, he submitted that minimum punishment for the offence under section 436, P.P.C. Is 3 years and the maximum would not exceed 10 years, therefore, the case would fall beyond the prohibitory clause of section 497, Cr.P.C.
5. Mr. Aamir Mansoob, learned counsel for applicant Ghulam Mehboob argued almost on the same lines and submitted that there is no plausible explanation of the appearance of witnesses at a very late stage. Mr. Shahadat Awan, learned counsel for complainant submitted that there is mention in the memo. Of site inspection, of a plastic bucket and even the pieces of clothes have been recovered under a separate seizure memo. He further submitted that the witnesses have, in clear terms, expressed that out of fear they had left the place of incident and on return they disclosed the matter- to their contractor. He submitted that the eye-witnesses have assigned role to the applicants who had set the pieces of cloth lying in the bucket on fire and at this stage it is premature to assess the evidence deeply and reject the same. Learned counsel for, both parties relied on case law also. Ms. Masooda Siraj, learned State Counsel adopted the arguments of Mr. Shahadat Awan.
6. At the outset it may be observed that delay in recording of the statement of witnesses has always been taken as a significant factor but the Courts have not taken adverse note of it if plausible explanation has been offered to justify the same. In view of such explanation bail was declined by this Court in Abdullah Khan v. The State (2001 PCr-.LJ 1679). All the same, the observations of Honourable ' Supreme Court in Abdul Khaliq v. State (1996 SCM R 1553) are specific on the point that in absence of explanation the value of such statement is considerably reduced. In the instant case the only explanation is that out of fear the witnesses had left and turned up after 15 days. It is for the trial Court to assess if this is a justifiable explanation or not. For the moment this delay is to be tentatively assessed with attending circumstances.
7. Indeed corroboration of the evidence of eye-witnesses is sought through the existence of plastic bucket but as rightly pointed out by Mr. Ilyas Khan, the Investigating Agency has put up a quite inconsistent and conflicting version about these important pieces of. Evidence. The site memo.
Dated 6-1-2002 prepared by Civil Lines Police at 9-45 p.m. Shows presence of a plastic bucket but as pointed out by Mr. Ilyas Khan there is absolutely no mention if any part of it has melted due to tire. Surprisingly, the other agency namely CIA Police which as per their own record took up the investigation under a letter with effect from 9-1-2002 had made recovery of partly burnt articles of a towel and other clothes on 6-1-2002 at 21-15 hours. It is yet to be understood how they conducted investigation with retrospective effect. As observed by the learned trial Court there was probability if short circuit as the source of fire but then the aforementioned conflicting pieces of evidence of recovery and site memo. Would definitely support the bail plea to the extent that, prima facie, the allegations would require further inquiry.
8. It was also contended by Mr. Shahadat Awan that earlier report of the complainant dated 3-1- 2002 reflects the unfair activities of the union. If this is taken as motive it would react equally on both sides. Even then I am of the view that determination of this point is yet to be made at the trial.
9. In view of the material discussed above and the conflicting situation obtaining from the investigation I am convinced that a case for bail is, prima facie, made out. The applicants be released on furnishing surety in the sum of Rs,100,000 each and executing P.R. Bond in the like amount to the satisfaction of the trial Court. The listed applications stand disposed of.