This bail application has been tiled on behalf of applicants Syed Asif Ali and Karim Ullah, who are facing trial in the Court of the find Additional Sessions Judge, Karachi (Central) for offences punishable under sections 365, 302 and 324 read with section 34, P.P.C. in crime F.I:R. No,466 of 1994 of Police Station Liaquatabad, Karachi.
The brief facts of the case as stated in the F.I,R..recorded at Liaquatabad Police Station on the basis of 154, Cr.P.C. statement of complainant Samar Abbas are that he used to live in Liaquatabad at the address given in the F.I.R. and alongwith his elder brother Ghulam Abbas 'went to video shop on. At about 11-30 p.m., they were passing through the street of Sipah-e-Sahaba mosque when four boys in a yellow Mehran Taxi arrived there. They stopped the complainant and his brother and forced them to sit in the taxi whereafter they were taken to the street of Chhotto Hotel. There, the complainant and his elder brother were ordered to get down from the taxi and the four persons immediately started tiring from, T.T. Pistols with which they were, armed. One bullet hit Ghulam Abbas on the head while one bullet hit the complainant on the left thigh. Ghulam Abbas died on the spot while complainant received serious injury.
After recording the F.I.R Investigation was taken up. Both the applicants were arrested on 2-4-1995 and after completion of the investigation, were challaned to face trial for the above offences.
The last bail application moved on behalf of the applicants/accused was disposed of by the 'Ind Additional Sessions Judge, Karachi (Central) vide order dated 9-9-2000, whereby the bail application was rejected. The main ground on which the bail application of the applicants/accused was rejected was that the applicants besides their involvement in the above case were involved in 8/9 other cases of murder, kidnapping and abduction, which was a sufficient ground to hold them to be dangerous, desperate and hardened criminals, thereby depriving themselves of the benefit of the IIIrd proviso to section 497, Cr.P.C. Feeling aggrieved and dissatisfied with the order of rejection of bail, the applicants/accused have filed the present bail application.
Notice of the bail application was served on the Advocate-General, Sindh and in pursuance thereof, Mr. Arshad Lodhi, A.A.-G has appeared on behalf of the State.
I have heard the arguments of M/s Agha Zafir, Ali Arshad Lodhi, the learned counsel for the applicants/accused and the State respectively.
Mr. Agha Zafir Ali has raised the following contentions in support of the bail application:-
1. That there is an unexplained delay of more than five hours, in lodging the F.I.R. which adversely affected the veracity of the prosecution;
2. That the names of the applicants/accused do not appear in the F.I.R.
3. That no description or features of the applicants have been mentioned in the F.I.R.:
4. That in the absence of any demand for ransom or depriving the complainant and deceased Ghulam Abbas of valuable a Articles from their persons, the possibility of the incident having taken place as alleged appears to be remote;
5. That the prosecution is not in possession of any evidence to prima facie connect the applicants/accused with the offences in view of the failure of the prosecution to get them identified after their arrest by the complainant and the case is that of further enquiry;
6. That the applicants/accused have been continuously in detention since 2-4-1995 and they are entitled to be released in view of the benefit of the IIIrd proviso to section 497. Cr.P.C.: and
7. That the exception to the IIIrd proviso to section 497, Cr.P.C. is not applicable as the factum that the applicants/accused are facing trial in 8/9 cases of murder, kidnapping and/or abduction is not sufficient to hold them to be dangerous, desperate and hardened criminals as envisaged in the exception to the IIIrd proviso to section 497. Cr.P.C. Mr. Arshad Lodhi, the learned A.A.-G. on the other hand vehemently controverted the aforesaid grounds and submitted that from the material on record, the prosecution has succeeded in satisfactorily establishing that the applicants/accused are dangerous, desperate and hardened criminals and are not entitled to the benefit of the IIIrd proviso to section 497, Cr.P..C. He further submitted that the F.I.R. had been lodged promptly without any unnecessary delay which also rules out the possibility of any fabrication or concoction.
I have considered the arguments advanced by the learned counsel. Mr. Agha Zafir Ali has in the first, instance raised suspicion and doubt with regard to the veracity of the F.I.R. on the ground that it was delayed by more than five hours while the distance of the place of incident from Police Station Liaquatabad was only 1-1/2 kilometre and there is no explanation as to why it took complainant Samar Abbas more than five hours to lodge the F.I.R. This contention has no force.
According to the contents of the F.I.R., the complainant had received a tire-arm injury on the left thigh while his brother died on the spot. It has not been stated in the F.I.R. as to whether complainant Samar Abbas proceeded to the police station, directly from the place of incident or had managed to go to his residence for informing other relatives of the incident. It has also not been mentioned as to how he managed to go to the police station and whether the dead body of deceased Ghulam Abbas was taken along to the police station or was left at the scene of occurrence after making appropriate arrangement for its safeguard. All the circumstances lead to presumption that certain time must have been consumed. by complainant Samar Abbas in reaching the police station as besides the above circumstances he was in injured condition and would not have been able to move freely. Thus, any doubt or suspicion with regard to the veracity of the F.I.R. on the ground of having been lodged after more than five hours is without any substance and is to be ruled out of consideration.
With regard to the failure of the prosecution to put the applicants/accused to identification test after they were arrested on 2-4-1995 is a very serious omission. From perusal of the F.I.R., it transpires that the complainant had not seen the applicants/accused before the incident.
Furthermore, it was night time and the complainant would have seen the applicants/accused in street lights for the first and only time. In the circumstances, it was incumbent upon the prosecution to hold an identification test for identification of the applicants/accused through complainant Samar Abbas. However, such identification test was never held. Identification of the Applicants/accused by complainant Samar Abbas in the identification test would have been a very important evidence/material in the hand of the prosecution to connect the applicants/accused with the alleged offences. In the absence of such test the prosecution's case requires further inquiry for prima facie connecting the applicants/accused with the aforesaid offence and for the time being there appears to be no reasonable ground to comprehend that they are guilty of an offence punishable with death, imprisonment for life or ten years.
It is an established fact that the applicants/accused have been continuously in detention for more than five years and on this ground alone, they would be entitled to be released on bail. However, grant of bail on the ground of delay in completion of the trial within the period provided on the third proviso to section 497. Cr.P.C. was vehemently opposed by Mr. Arshad Lodhi on the ground that the material in possession of the prosecution satisfactorily makes out that the applicants/accused are dangerous, desperate and hardened criminals, as a result of which they cannot be allowed the benefit of the third proviso to section 497, Cr.P.C. In support of his contention, he has placed reliance on the report of Superintendent, Central Prison. Karachi, wherein it has been stated that the applicants/accused are facing trial in 8/9 cases of murder, kidnapping and abduction and further that their cases have been ordered to proceed inside the jail premises. Mr. Arshad Lodhi submitted that these facts were sufficient to hold the applicants/accused to be dangerous, desperate and hardened criminals as envisaged by the fourth proviso to section 497, Cr.P.C., thus disentitling them of the benefit of the third proviso to section 497, Cr.P.C.
The question as to whether the applicants/accused are dangerous, desperate and hardened criminals and would not be entitled to the benefit of the third proviso to section 497. Cr.P.C. in my view does not require to be considered in the present case as in the first place the prosecution is required to establish beyond a reasonable doubt that the applicants/accused are prima facie involved in the commission of the offence, which result in the death of Ghulam Abbas and injury to complainant Samar Abbas in pursuance of an attempt to murder him. Except the word of complainant Samar Abbas, there is no evidence to implicate the applicants/accused. Even the evidence of complainant Samar Abbas would have been worthy of credence and valuable only if he could identify the applicants/accused to be amongst the four persons, who had tried to kidnap and/or abduct him and his brother Ghulam Abbas. The prosecution could have been in possession of such evidence by getting the applicants/ accused identified, through complainant Samar Abbas in an identification test, which the prosecution failed to hold. In the circumstances, the prosecution apparently has not succeeded in prima facie connecting the applicants/accused with the above offences and the case of the prosecution is of further inquiry for reasonably holding the applicants/ accused to be guilty of an offence punishable with death, imprisonment for life or ten years.In view of this fact, the question as to whether the applicants/accused are dangerous, desperate and hardened criminals would fall into oblivion as it would have required consideration only if the prosecution had succeeded in making out a prima facie case against the applicants/accused and there was reasonable ground to believe them to be guilty of an offence punishable with death, imprisonment for life or ten years.
Upon the above discussion, I am satisfied that a case is made out for enlarging the applicants/accused on bail. Accordingly, this bail application is allowed and the applicants are granted bails on their furnishing one solvent surety in the sum of Rs,200,000 (Rupees two lacs only) each and P.R. Bond in the like amount to the satisfaction of the trial Court.