1. ' Through this common order I propose to dispose of Criminal Bail Application Nos. 19/1999, 20/1999, 21/1999 as well as 100/1999, 101/1999 and 102/1999, which have been filed under section 497(1) Cr.
2. P.C. As both sets of applications arise out of the same sets of incidents viz. F.I.R. No, 72/1997 lodged on 30th August, 1997, F.I.R. No, 75/1997 lodged on 29th September, 1997 and F.I.R. 82/1997 lodged on 5-10-1997 ' The facts of the matters as per the above F.I.Rs, are more or less similar. In F.I.R. No, 82/1997, which is the subject-matter of Criminal Bail Applications Nos.19 of 1999 and 102/1999, it has been alleged by complainant Noor Nabi that on 4-10-1997 at about 2145 hours he and his brother Noor Ahmed and employee Fareed Ahmed were working at his General Store known as Noor General Store and were selling articles to some customers when one motorcycle C.D. 70 stopped in front of his shop which was ridden by three young boys out of whom one kept sitting on the same and two entered the General Store one of whom had a TT Pistol and the other a dagger. Both these persons then pointed their weapons at them and told them to hand over whatever they possessed and accordingly one of the accused, searched the complainant and took out Rs,7,500 and thereafter Rs,35,000 from the pocket of his brother Noor Ahmed. Subsequently a golden chain was also removed from one customer and another customer Moin was also searched but nothing was recovered from the latter. Then the accused persons opened drawer of the counter and took out Rs,29,500 in cash where after both the accused persons went out of the Store and escaped on their motorcycle alongwith the third accused. A description has been given of the two accused who entered the Store viz: that one of them was wheatish coloured and aged about 25 to 26 years and with trim hair, trim moustache and was wearing a light silver coloured shalwar kameez and another accused was also wheatish coloured with similar body aged about 25 to 26 years and also wearing shalwar kameez but had long hair with big moustache and both the accused were speaking in Sindhi language. One of the accused persons had a burn scar on his cheek. Thereafter the facts of the matter were narrated by the complainant to the President of the Saddar Market Association namely Turab Ali and General Secretary Nadeem Siddiqui who asked the complainant to lodge the complaint which was accordingly done on 5-10-1997 at 13-20 hours.
3. ' As per F.I.R. No, 72/1997 lodged on 30-8-1997, which relates to Criminal Bail Application Nos. 20 of 1999 and 101 of 1999 it is alleged that on the same day at 15-20 hours a black coloured motorcycle without number plate stopped in front of the complainant's shop known as Mukhtiar Paint House situated in Saddar Bazar Hyderabad and thereafter two boys who were carrying TT pistols entered the shop and pointed one pistol towards the complainant and the other towards contractor Hameed who was present in the shop and removed Rs, 12000/- from his pocket as well as his wrist watch. Afterwards the same accused took out Rs, 1,50,000 from the pocket of Project Director Ghulam Rasool and thereafter Rs, 25,000 were taken out from the pocket of Manzoor Wapda supplier and a sum of Rs, US $ 400/- removed from the possession of Builder Yousuf as well as a wrist watch. Then the two accused took out cash Rs, 20,000 from the complainant's drawer as well as Mobile Phone and two golden chains from his neck, three golden lockets, two golden rings and a costly watch. As per the allegations contained in the F.I.R. All the above mentioned persons were present in the complainant's shop on the day and the time of incident. The F.I.R. Further goes on to describe both the accused of ages 22/23 years and both of them were wearing shalwar kameez of light blue and khaki colour and both the accused were wheatish coloured and were slim in body and could be identified by the complainant and the persons present in the shop. Thereafter both the accused went and joined their third companion and escaped on their motorcycle towards Basant Hall and then the complainant informed 15 control and also chased the accused but they made good their escape. Accordingly, the F.I.R.' was lodged without any loss of time.
4. ' In F.I.R. No, 75/1997, which is the subject-matter of Criminal Bail Applications Nos. 21/1999 and 100/99 which was lodged on 29-9-1997 at 2245 hours it has been alleged by complainant Raeesuddin that on the same day at 20-20 hours while he was present at his shop in Unit No, 7 Latifabad, M.R. Building along with his employees Ashiq and Adil and one customer namely, Tasleem, two young boys came at the shop carrying TT pistols and one of them entered the shop and took out a sum of Rs, 70,125 from the drawer and the other took out another sum of Rs, 68,500 as well as removed the complainant's Seiko wrist watch. The other accused took out Rs, 3,000 from the pocket of Tasleem thereafter both of them went to the adjacent confectionery shop of Iqbal Ahmed and took out Rs, 25,000 thereafter both the accused crossed the road in front of Cafe Firdous and joined their third accomplice who was sitting on a motorcycle without number plate being red coloured and thereafter all, the three accused went away towards Unit No, 6, Latifabad.
5. Thereafter, complainant lodged the F.I.R. Without any wastage of time.
6. ' As per challan subntitted in Crime No,75 of 1997, the accused Qadir Bux, Aftab and Jan Muhammad were apprehended on 19-10-1997 at Rehmani Masjid near M.R. Building Unit No, 7, Latifabad in. Crime No,78 of 1997 which was registered under section 17(3) Hudood Ordinance and section 394, P.P.C. When weapons were also recovered from their possession. On 25-10-1997 upon interrogation, the accused admitted their guilt and Rs, 20,000 were recovered from their houses.
7. Then an identification parade was held on 1-11-1997 in the presence, of the witnesses who have identified the accused. As per the challan separate F.I.Rs, against all the three accused have been lodged also bearing Nos. 85 of 1997, 86 of 1997 and 87 of 1997 under section 13(d) of the Arms Ordinance. In Crime Nos.72 of 1997 and 82 of 1997 the accused were shown to have been arrested on 21-10-1997 from Police Station "A" Section Latifabad and the investigation carried out in crime No, 75 of 1997 has been relied upon for the purpose of putting up the challans in the trial Court.
8. ' A bail application was moved before the learned trial Court in crime No,82 of 1997 on the statutory ground of delay 'on behalf of accused Qadir Bux but the same was rejected vide the impugned order dated 16-12-1998 on the basis that it had come on the record that the applicant/accused was a hardened criminal since he was involved in various crimes and also due to the fact that the advocate of one of the accused Jan Muhammad had filed a statement on 14-12-1998 stating therein that on 11-12-1998 accused Jan Muhammad had abused him and extended threats of killing him, therefore, learned counsel had withdrawn his Vakalatnama on behalf of said accused.
9. Consequently in view of the above facts and in view' of the jail report, which was not positive the bail application was rejected. Similarly, bail was also denied to accused Qadir Bux in crime No, 72/1997 and 75/1997. The same reasons also prevailed upon the learned trial Court as regards accused Aftab in Crime Nos. 75 of 1997, 82 of 1997 and 72 of 1997 whereby bail was also denied to him.
10. ' On the basis of the above facts and circumstances learned, counsel for the applicants in all the bail applications viz. 19, 20 and 21 of 1999 filed on behalf of accused Qadir Bux and Bail Applications Nos.100, 101 and 102/1999 on behalf of accused Aftab has vehemently argued that the fourth proviso to section 497(1) Cr. P.C. Is not at all applicable to the case of both the accused as it has not been established that the accused are hardened, dangerous or desperate criminals or are involved in acts of terrorism and are thus entitled to bail under the statutory ground as they have remained in prison for more than one year.
11. ' It has also been argued by the learned counsel that mere pendency of the cases against the accused does not mean that they are hardened, dangerous or desperate criminals or for that matter the fact that one of the accused namely Jan Muhammad had fought with his counsel and extended threats to his life also does not establish that they are such Criminals particularly when it was only Jan Muhammad who was involved in the alleged incident and not the applicants. Thus it is the learned counsel's submission that in any event the applicants should not suffer for the actions of another co-accused. Finally, in this regard learned counsel has submitted that the jail report, which merely describes the conduct of the applicants as unsatisfactory and does not give any details thereto is also not conclusive of the fact that the applicants are hardened, dangerous or desperate criminals. In support of these contentions learned counsel has relied upon Khalid Taqi v. The State (1999 PCr. LJ 271); Amin v. The State (1998 PCr. LJ 1677), Moundar v. The State (PLJ 1989 SC 1), Shamon Jatoi v. The State 1996 PCr.LJ 783 and Muhammad Rafiq v. The State (1997 SCM R 412).
12. ' Learned counsel had further submitted that as per the evidence so far brought on the record as well as investigation conducted in the matter there is hardly any material through which the applicants can be connected to the crimes in question. In this connection learned counsel has directed my attention towards the fact that in the case of Qadir Bux in Criminal Bail Application No, 19/1999 viz. Crime No, 82/1997 only the complainant Noor Nabi during his examination-in-chief has deposed that he had recognized the applicant during the identification parade and he was the same accused who was present in Court on the day such evidence was recorded. However, he has admitted that the photographs of the accused were published on 9th October, 1997 in different newspapers whereas he identified the accused after one month of the incident as well as the fact that he got information regarding the arrest of the accused from said newspapers. On the other hand, according to the learned counsel P.W. Nadeem, who was present in the shop of the complainant on the day of incident had not seen the accused properly and hence could not recognize them. He could not also say as to whether the two accused who were present in Court were the same persons who had committed the offence on the day of incident. So also P.W. Noor Ahmed could not recognize the accused. Similarly, P.W. Moin too could not say whether the two persons who were present in the trial Court were the same persons who had committed the alleged offence on the day of incident. However, P.W. Farid deposed that he had recognized the accused in the identification parade as he had taken a good look at them during the incident.
13. Nevertheless, he could not say whether the accused present in Court were the same persons who had committed the offence in question nor whether they were the same persons whom he had identified at the time of identification parade. He has also admitted that when he arrived for the parade the accused's faces were open and the Subedar had told him. That they were the same persons who had been arrested in the crime.
14. ' Similarly, in the case of applicant Aftab in Criminal Bail Application No,100 of 1999, which is the subject-matter of crime No,21 of 1998, learned counsel submits that the complainant Raeesuddin had admitted that the accused present in Court were not the culprits who had committed the robbery in his shop although at the identification parade he had recognized the persons present as the culprits who had entered his shop on the .Day of incident. However, in the same case P.W. Iqbal Ahmed supported the contents of the F.I.R. And also identified the accused at the identification parade as well as recognized them to be the same persons who had entered his shop on the day of incident, which was adjacent to the complainant's shop. P.W. Iqbal Ahmed has also admitted during the cross-examination that he did not have any knowledge of the robbery in Raeesuddin's shop at the time of. Incident. However, he came to know about the robbery at Raeesuddin's shop after they both came out of their respective shops. He also admitted that he had not lodged any separate F.I.R. As the Munshi of the police station had advised him that only. One F.I.R. Would be lodged. He has denied that he had identified the culprits at the instance of the police. P.W.
15. Ashfaque has also stated in his examination-in-chief that he could not say whether the accused present in Court were the same persons who had committed the robbery.
16. ' Finally as regards Crime No, 72 of 1997, which is the subject-matter of Criminal Bail Application No, 20/1999 and 101/1999, Learned Counsel submits that apart from the complainant Imran Ali no other witness has recognized the three accused persons and, in fact, P.W. Muhammad Yousaf could not even say anything regarding the details of the cash rooked from the various other persons, who were present in the complainant's shop on the date of the incident. So also said P.W. Has admitted that during the incident he was confused. Similarly, learned counsel submits that under cross- examination the complainant has admitted that at the identification parade the faces of the accused were not muffled and neither has he assigned any specific role to the various accused at the time of such incident. So also he has admitted that he comes from an influential political family, however, he has denied that the Police were pressurized by him into raking in the accused for the crime in question or that he has falsely implicated the accused at the instigation of the concerned S.H.O.
17. ' For all the foregoing reasons learned counsel has submitted that the identification parade suffers from grave legal infirmities as it has not been carried out in accordance with law. -Secondly, learned counsel submits that apart from the complainants in two F.I.Rs, none of the other P.Ws.
18. Have recognized -the accused in which circumstances the matter is one of further inquiry. In this regard, learned counsel has relied upon Muhammad Rafique v. The State (1991 PCr. LI 857), Junior Reid and others v. R (1993 4 AER 1995---reported in 1994 SCMR 39), Akhtar Mehmood v. The State (1997 PCr. U. 2423). On the other hand, learned A.A.-G. Has submitted that all accused have been identified by the complainants in two of the F.I.Rs, plus one P.W. i,e,, Farid has also identified them.
19. So also according to the Jail Report the conduct of -the accused was not satisfactory and as per the police papers the accused were involved in a number of crimes and hence they were hardened and desperate criminals.
20. ' I have heard both the learned counsel and my conclusions are as follows: ' It is a well-settled principle of law that mere pendency of cases against the accused is no criteria to condemn them as being dangerous or hardened or habitual criminals. In this regard reference can be made to Moundar and others v. The State (supra), Muhammad Rafique v. The State (1997 SCM R 412) and Shamoon Jatoi v. The State (supra). Similarly, I am also satisfied that the Jail Report regarding the accused unsatisfactory behavior without giving any details thereto is hardly capable of being relied upon to establish that they are hardened or dangerous criminals. Similarly, the fact that one of the accused Jan Muhammad had fouglit with his advocate and extended threats of killing him can also not be a basis of a finding at this stage that the said accused was a hardened and desperate criminal. In any event the behaviour of accused Jan Muhammad cannot establish with any degree of certainty that the other two accused were also guilty of such conduct.
21. 'However, having observed as above, it is also to be seen whether the material so far placed on the record could tentatively connect the accused to the alleged crimes in question. In this regard, it would be seen that all the three incidents were committed by three young men whose descriptions in the F.I.Rs are more or less alike. Similarly, the modus-operandi adopted by all the three accused in the crimes in question is the same viz: one of the accused waited outside the shop on his motorcycle whereas the other two accused went inside and committed the dacoity. All these factors, in my view are not a mere co-incidence but appear to reflect, prima facie, a set course followed by the accused during the commission of the alleged crimes in question. So also the examination of the complainant Noor Nabi in Crime No, 82 of 1997 and complainant Imran Ali in Crime No, 72/1997 on Oath in the various crimes reveals that these two have positively recognized the accused. Similarly, P.W. Iqbal Ahmed in Crime No, 21/1998 has in the like manner identified the accused at the identification parade as well as recognized them in Court to be the same persons who had committed the crime in the question. It would also be seen that although complainant Raeesuddin in Crime No, 21/1998 had admitted that the accused present in Court D were not the culprits who had committed the robbery in a shop, however., at the identification parade he had recognized the persons present there as the culprits who had done so on the day of incident.
22. Consequently, I am of the view that prima facie the accused can be connected to the crimes in question.
23. It would also be seen that the alleged crimes were crimes against Society as they were committed in broad-day light in shops crowded with customers in which event these were acts of terrorism as the perpetuators E thereof were armed and had put innocent people in danger of their lives. In these circumstances, I am of the view that as the Applicant/Accused are, prima facie, involved in acts of terrorism, consequently, the fourth proviso of section 497(1) Cr.P.C. Is squarely applicable in their cases. It has been held by the Hon'ble Supreme Court in Rizvan Hussain v. The State (1999 SCM R 131) while refusing bail in an incident involving car snatching at gun-point that the Court could not be oblivious of the high incidence of car snatching cases in the City of Karachi and consequently the fourth proviso to section 497(1), Cr.P.C. Was properly invoked by the High Court in rejecting the petitioner's bail application. Similarly, one of us namely Dr. Ghous Muhammad, J. Has also declined bail in an incident of car snatching at gun-point in the case of Muhammad Shafique v. The State (1998 PCr. U 1299) deeming it to be an act of terrorism. It may also be seen that the Honourable Supreme Court has held in Imtiaz Ahemd v. The State (PLD 1997 SC Page 545) that the Courts in dealing with crimes directed against Society at large have to be cautious in granting bail even though the accused were charged with a crime,, which come within the exceptions to the prohibitory clause of section 497(1), Cr.P.C. Consequently, bail was, refused on the basis that the crime was committed against Society as the accused was the holder of public office. Reliance was placed on Tariq Bashir and five others v. The State (PLD 1995 SC 34) whereby it was held that in exceptional and extraordinary cases bail can be declined even where the alleged offences carry imprisonment of less than 10 years. Even otherwise, in my view, in the present matter the crimes allegedly committed by the accused can squarely fit within the provisions of section 382 P.P.C.
24. Under which they can be, punished for up to 10 years' imprisonment.
25. For all the foregoing facts and reasons these Bail Applications are rejected. However, as most of the prosecution evidence has been recorded, to be fair to the applicants/accused, the learned trial Court shall complete recording of the remaining evidence and dispose of these cases within three months from the date of this Order.