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Criminal Bail Application No. 1556 of 1986, decided on 17th November, 1986.
‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 392‑‑Bail, grant of‑‑Ground of delay in trial of more than one year although available to applicant and specifically taken in earlier bail application yet not pressed‑‑Such ground, held could not be considered as a fresh ground nor could be made basis of any subsequent application, in circumstances.
P L D 1986 S C 173 ref.
‑‑‑S. 497‑‑Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), Ss. 5(6) & 7‑‑Bail, grant of‑‑Powers of High Court under S.497,Cr.P.C. to grant bail to an undertrial prisoner, facing trial before a Special Court constituted under Act of 1975, held, remained unaffected and High Court could grant bail on any grounds available under S. 497, Cr.P.C.
Gul Muhammad v. The State 1985 P Cr. L J 205; Jawad Beg v. The State P L D 1975 Kar. 628; Muhammad Yaqub Ali v. The State PLD 1985 Lah. 48; Muhammad Moosa v. The State 1986 P Cr. L J 578; Altaf Hussain v. The State P L D 1985 Lah. 10; Abdul Majeed and others v. The State 1985 P Cr. L J 890 and Mst. Zeenat Ali v. The State 1985 PCr. LJ 2592 ref.
‑‑‑S. 497(1), provisos III & IV‑‑Penal Code (XLV of 1860), S. 392‑‑Bail, grant of‑‑List of cases placed before Court indicating that in F.I.Rs. names of applicants appearing as accused but further nothing brought on record to show what were actual role played by them or parts assigned to them, whether any investigation was made in such cases; or applicants sent up for trial or any process issued by any Court against them‑‑Opinion that applicants were hardened, desperate or dangerous criminals, held, could not be formed basis of such inadequate information nor prosecution could deprive applicants of benefit of third proviso to S. 497, 'Cr.P.C., in circumstances.
‑‑‑S. 497(1), proviso III‑‑Penal Code (XLV of 1860), S. 392‑‑Bail, grant of‑‑Delay‑‑Over two years passed since arrest of applicants yet trial not even commenced and such delay not attributed to them‑ Applicants allowed bail, in circumstances.‑‑[Delay].
Abdul Majeed Pirzada, Nuruddin Sarki and Hasan Shah Rashidi for Petitioners.
M.I. Memon Additional Advocate‑General for the State.
Dates on hearing: 28th, 29th and 30th October, 1986.
‑‑ This order will dispose of Criminal Bail Application Nos. 1556/86, 1557/86, 1558/86 and 1559/86. In Bail Application No. 1556/86, there are 3 applicants, namely, Gul Muhammad Jakhrani, Abdul Sattar Morio and Iqbal Tunio, who. alongwith several other co‑accused, one facing trial under section 392, P.P.C. before a Special Court of Sind constituted under section 3 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, This Special Court is presided by a learned Judge of Sind High Court. Section 4 of the Act of 1975 confers exclusive jurisdiction upon the Special Courts in respect of the Scheduled offences. In the Schedule to the Act, a list of offences is given in respect whereof the Special Courts have exclusive jurisdiction and these include an offence punishable under section 392, "if canon grenade, bomb, rocket, or an arm of a prohibited bore is used for, or any public property is stolen, destroyed or damaged in the commission of the offence", and any offence punishable under sections 8, 9 and 10 of Arms Ordinance XX of 1965 if committed in respect of a canon, grenade, bomb or rocket.
2. F.I. R. in the case was lodged on 17‑10‑1984 at Police Station Jam Shoro under section 17 (3) of the offences Against Property (Enforcement of Hudood) Ordinance 1979. Registrar of the Sind University, under cover of his letter dated 17‑10‑1984 addressed to the S.H.O. Police Station Jamshoro, enclosed a report of the vehicle Incharge of Sind University requestion that F.I.R. be lodged. The report of vehicle Incharge of Sind University was to the following effect:‑
"Today the 17th of October, 1984, some students forcibly took away two University Buses No. Ex‑1636 and Ex‑1638, and left the University Campus at 2‑00 p.m. for unknown place. The names of drivers and cleaners are as under:
| Bus No. | Name of Driver | Name of Cleaner |
| Ex‑1636 | Mr. Muhammad Anwar | Mr. Mohib Ali. |
| Ex‑1638 | Mr. Ghous Bux | Mr. M. Sulleman |
This is submitted for your kind information and necessary action.
(Sd.) (Sd.)
Enecutive Engineer Vehicle Incharge."
According to the prosecution, however, investigation into the case revealed that the three applicants were armed with kilashinkoves at the time and the drivers of the hijacked buses had been threatened with dire consequences. The case against the accused was first challaned in a Military Court which granted bail to some of the accused (not the applicants) but the trial was not concluded before the Military Court and after lifting of Martial Law from the country. The accused including the applicant have been sent up for trial before the learned Special Court. The three applicants have remained in continuous custody for over two years since October, 1984.
3. Before the learned Special Court, the three applicants alongwith other accused are facing trial under section 392, P.P.C. and each one of the three applicants is also facing trial under the Arms Ordinance 1965 in separate cases. It may be observed here that according to the learned counsel for the applicants as well the learned Additional Advocate‑General, the accused had also been challaned under section 307, P.P.C. but as this is not a Scheduled Offence, the learned Special Court has decided that it will not try the accused for the offence under section 307, P.P.C., for which offence the accused will be facing trial in the Sessions Court at Kotri. Learned counsel for the applicants further informed that the Assistant Sessions Judge, Kotri has granted bail to the accused including the three applicants in the case under section 307, P.P.C.
4. Before the learned Special Court, six of the accused including the three applicants filed a joint bail application for bail in the main case under section 392, P.P.C. By order dated 24‑4‑1986, the learned Special Court refused bail to the three applicants but granted bail to the three other accused, namely, Umar Din, Nazir Ahmed and Dodo on the following grounds:
"Mr. Neamatullah Qureshi, applicants' counsel, has stated that already 8 of the accused have been released on bail by the military authorities and one of the released accused was Kampomal who have been alleged to have had a pistol. He further states that Umar Din, Nazir Ahmad and Dodo had allegedly no weapons with them and, therefore, it is unfair to keep them behind bars now as they have already been behind the bars since 17‑10‑1984. He further stated that all the accused are innocent of the offence of robbery as the F.I.R. is sketchy and the statements of the P.Ws have been recorded as late as 31‑12‑1984. However, I am of the view that at the moment I have to see whether a prima facie case under section 392 has been made out or not.
Since there is an allegation of threat of dire consequences and the buses have been driven allegedly by the drivers under the fear of death and Abdul Sattar, Iqbal and Gut Muhammad are stated to be armed with kalashinkov, therefore, it appears to me that these three persons appear to be prima facie guilty of an offence under section 392, P.P.C. because it is an admitted position that the buses had been removed from the University forcibly. However, the case of Umar Din, Nazir Ahmad and Dodo appears to be different as they were not armed with any weapon and, therefore, there is no reasonable ground to believe at this stage that they had been guilty of the offence under section 392, P.P.C. as they do not appear to have advanced any threats. They are, therefore, entitled to bail."
By separate order also passed on 24‑4‑1986, learned Special Court dismissed bail applications moved by three applicants in cases under the Arms Ordinance. 1965.
5. After dismissal of their bail applications by orders dated 24‑4‑1986, the three applicants filed a second set of applications before the learned Special Court on the ground of nearly 2 years' delay in the trial of the cases against them but by order dated 16‑10‑1986, the learned Special Court dismissed the bail applications. Order dated 16‑10‑1986 is reproduced here:‑
"This bail application is pressed by Mr. Mujeeb Pirzada, Advocate on the point of nearly 2 years' delay in the trial of the case.
Mr. Ibrahim Memon, Additional Advocate‑General has submitted that this bail application is barred because another application has been dismissed on 24‑4‑1986 and this point was available to the applicant and had been in fact, taken in the application, but it was not pressed. He also submitted that the point of delay in the trial is not available in respect of the suppression of Terrorist Activities.
Mr. Mubjeeb's reply to the 1st preliminary point raised by Mr. Ibrahim was that delay was a continuing matter and, therefore, every days' delay in the trial would provide a fresh bail application.
Councel's reply in respect of the 2nd contention of Mr. Ibrahim was that the Tribunal has got all the power available under section 497 of Cr.P.C.
I am afraid that the 1st preliminary point of Mr. Ibrahim that the present bail application is incompetent has to succeed in view of the dictum of the Hon'ble Supreme Court laid down in PLD 1986 SC 173 (177) where it was held that if a ground was available to the accused at the time when the 1st bail application was filed and was not taken or was not pressed, it could not be considered as a fresh ground and made the basis of any subsequent bail application.
Since the ground of delay in trial of more than one year was available to the petitioner and was specifically taken in the bail application but was not pressed into service, therefore, the present bail application is not competent.
In view of the 1st preliminary point taken by A.A.‑G. having succeeded it is not necessary to decide the 2nd preliminary point raised by him in respect of non‑availability of the ground of delay in trial before the Special Court.
The submission of Mr. Mubjeeb that every day's delay provides fresh cause of bail, is not correct in view of the fact that the application is being pressed on the point of more than 12 months' delay in the trial entitling the accused to bail under the provision of section 497 of Cr. P. C .
6. In the aforesaid circumstances, the three applicants, Gut Muhammad Jakhrani, Abdul Sattar Morio and Iqbal Tunio have filed these four bail applications before the Sind High Court. As observed earlier, in Criminal Bail Application No. 1556 of 1986, all three are applicants seeking bail in the case under section 392, P.P.C. The other three bail applications are in separate cases registered against the applicants under the Arms Ordinance, 1965. Criminal Bail Application No. 1557 of 1986 is by Gut Muhammad Jakhrani, Criminal Bail Application No. 1558 of 1986 is of Abdul Sattar Morio and Criminal Bail Application No. 1559 of 1986 has been filed by Iqbal Tunio. We have heard at length the arguments of Messrs Abdul Mujeeb Pirzada, Nuruddin Sarki and Hasan Shah Rashdi for the applicants and Mr. Muhammad Ibrahim Memon, learned Additional Advocate‑General Sind, who appeared for the State.
7. These bail applications have been pressed only on the ground of delay of over 2 years in the trial. No witness has yet been examined by the prosecution. In fact charges have not been framed against the accused as some of the accused are absconding. None of the offences for which the applicants have been challaned is punishable with death. Normally, in such circumstances where the applicants have been in continuous custody for over two years, they should have been enlarged on bail keeping in view the third proviso to section 497(1) of the Code of Criminal Procedure, but the learned Additional Advocate‑General Sind has opposed these bail applications on the following grounds:‑‑
(a) High Court has no jurisdiction to entertain any bail application of an accused who has been challaned before a Special Court constituted under section 3 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, for a scheduled offence;
(b) Even if the High Court has jurisdiction to grant bail to an accused facing trial before a Special Court for a scheduled offence under the Act of 1975, such an accused cannot be granted bail on the ground of delay under the third proviso to section 497(1), Cr. P . C . Reference was made to subsection (6) of section 5 of the Act of 1975 which is as follows:‑‑
"An accused person shall not be released on bail by a Special Court, or by any other Court, if there appear reasonable grounds for believing that he has been guilty of a Scheduled offence; nor shall an accused person be so released unless the prosecution has been given notice to show‑cause why he should be so released;
(c) Another objection raised by the learned Advocate‑General was that in the first bail applications moved by the applicants ground of delay had been taken but was not pressed and as such another bail application before the Special Court or even before the High Court on the same ground of delay was barred. Reliance was placed on a judgment of the Supreme Court in the case of State v. Zubari P L D 1986 S C 173;
(d) Last objection was that in any case the applicants were not entitled to bail on the ground of over one year's delay in the finalization of the trial against the applicants as in their case fourth proviso to section 497(1), Cr.P.C. is attracted i.e. they are desperate and dangerous criminals.
8. On the other hand it was argued by Mr. Abdul Mujeeb Pirzada hat none of the objections raised on behalf of the State had and merit. It was submitted that this Court had jurisdiction to entertain bail applications of under trial prisoners; that the High Court has all the powers available under section 497(1), Cr.P.C. for granting bails to such under trial prisoners; that the present bail applications were not barred as the principles laid down by the Supreme Court in P L D 1986 S C 173 were not attracted and that the case of the applicants for bail did not come within the mischief of the fourth proviso to section 497(1), Cr.P.C. Learned counsel also cited case law in support of his contentions,
9. (a) As regards the jurisdiction of the High Court to entertain a bail application of an accused who is undergoing trial before the Special Court constituted under section 3 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, learned Additional Advocate General referred to subsection (6) of section 5 of the said Act reproduced earlier and relied upon section 7 which is as follows:‑‑
"7. Appeals from sentences imposed by Special Court, etc.‑‑(1) A person sentenced by a Special Court shall have a right of appeal to the High Court within whose jurisdiction the sentence has been passed and the Provincial Government may direct any person appointed by it for the purposes to present an appeal to the High Court from an order of acquittal passed by a Special Court, but save as aforesaid and notwithstanding the provisions of the Code, or of any other law for the time being in force or anything having the force of law by whatsoever authority made or done, no Court shall have authority to revise such sentence, or to transfer any case from a Special Court or to make any order under section 4.6 or section 498 of the Code, as have any jurisdiction of any kind in respect of any proceedings of a Special Court.
(2) An appeal under subsection (1) shall be preferred to the High Court within thirty days of the passing of the sentence or order of acquittal, as the case may be and shall be heard and decided by a Bench of not less than two Judges of the High Court.
(3) Chapter XXIX of the Code shall apply to the suspension, remission and commutation of sentences passed by a Special Court "
Learned Additional Advocate‑General also placed reliance on a Full Bench judgment of the Peshawar High Court in the case of Gul Muhammad v. The State 1985 P Cr. L J 205.
Here reference may be made to another enactment which is the Offences in Respect of Banks (Special Courts) Ordinance, 1984, section 3 whereof also provides for constitution of Special Courts for trial of offences prescribed as Scheduled offences under the provisions of such Ordinance. It is to be noted that subsection (6) of section 5 of both the enactments are identical and section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, is identical to section 10 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, except that section 7 of the 1975 Act specifically gives to the State the right to file an acquittal appeal which is not specifically given to the State under section 10 of the 1984 Ordinance against a judgment of acquittal by a Special Court.
The consistent view of the Lahore High Court has been that the provisions of the 1984 Ordinance have not taken away the power of the High Court to grant bail under section 497/498, Cr.P.C. to prisoners undergoing trial before the Special Court. This is also the view of this Court.
Reference may now be made to the case‑law cited by learned counsel for the applicants:‑‑---
(i) Jawad Beg v. The State P L D 1975 Kar. 628.
It was held in this judgment that section 7 of the 1975 Act has not taken away the power of the Division Bench of the High Court to grant bail to an appellant in an appropriate case. This judgment is not directly on the point as it related to powers of the Division Bench of the High Court‑ in appeal against the judgment of the Special Court convicting the accused. The present bail applications have been moved by applicants who are under trial prisoners.
(ii) Muhammad Yaqub Ali v. The State P L D 1985 Lah. 48.
Here it was held by a learned Single Judge of the Lahore High Court that power of the High Court to grant bail under section 497, Cr.P.C. in a case pending before a Special Court constituted under the Offences in Respect of Banks (Special Courts) Ordinance, 1984 had not been taken away by any provision of the 1984 Ordinance. Learned Judge had considered the provisions of section 5(6) and section 10 of the said Ordinance.
(iii) Muhammad Moosa v. The State 1986 P Cr. L J 578.
This was a bail application moved by an accused facing trial before a Special Court under the Ordinance of 1984. The question involved before a Division Bench of this Court was whether the High Court could grant bail to such under‑trial prisoner. The learned Division Bench of this Court reached the following conclusion:‑‑
"The conclusion would be that in appropriate cases a Special Court has the jurisdiction to admit a person accused of a scheduled offence to bail. Appeal against the sentence recorded by the Special Court has to be made to the High Court within whose jurisdiction the sentence has been passed. It would, therefore, be anamolous if the trial Court has been empowered to admit an accused to bail while the same power cannot be exercised by the High Court during the pendency of the case. The High Court has inherent powers under section 498, Cr.P.C. to admit a person to bail keeping in view the merits of the case. Sections 497 and 498 have not been excluded in subsection (6) of section 5. Section 10 of the Ordinance would attract after the conviction is recorded. During the pendency of the trial the High Court can exercise power under section 498. There is no specific bar of admitting an accused facing trial before a Special Court as laid down in section 10 of the Ordinance.
We would, therefore, hold that during the pendency of the trial before the Special Court the High Court has the power to grant bail to an accused person facing trial before the Special Court."
(iv) Altaf Hussain v. The State P L D 1985 Lah. 10
In this judgment of a Division Bench of the Lahore High Court it was held that section 10 of the Ordinance of 1984 meant to deprive the High Court of its power to grant bail only after conviction by the Special Court but it does not oust jurisdiction of the High Court under section 498, Cr.P.C. to grant anticipatory bail at the trial stage, and that this interpretation of section 10 is reinforced by reference to section 5(6), which also does not oust the power of the High Court to grant bail.
(v) Abdul Majeed and others v. The State 1985 P Cr. L J 890
It was held by a Division Bench of the Lahore High Court in this judgment that the High Court has jurisdiction to allow bail before arrest or after arrest to an accused person facing trial for a scheduled offence before the Special Court constituted under the Ordinance of 1984 subject to provisions contained in subsection (6) of section 5 of the said Ordinance.
(vi) Mst. Zeenat Ali v. The State 1985 P Cr. L J 2592
In this judgment also a Division Bench of the Lahore High Court held that the provisions of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, do not affect the power and jurisdiction of the High Court to allow bail in respect of scheduled offences triable by a Special Court constituted under the said Ordinance.
(vii) Abdul Majid v. The Judge, Special Court, Lahore 1985 PCr.LJ 890.
In this case the contention that the High Court has no jurisdiction to grant bail to an accused involved in a scheduled offence under the Offences in Respect of Banks (Special Courts) Ordinance, 1984, was held to be without force. A Division Bench of the Lahore High Court held that in respect of such offences the Court has jurisdiction under sections 497 and 498, Cr.P.C. and further that provisions of section 497, Cr.P.C. are applicable to cases pending before Special Court with full force and section 5(6) of the 1984 Ordinance is not a complete substitution of section 497 (1) , Cr. P. C . nor a complete code for grant of bail to persons accused of offences mentioned in Schedule under the said Ordinance.
It has already been noted that provisions of section 5(6) of the 1984 Ordinance are identical to the provisions of section 5(6) of the Suppression of Terrorists Activities (Special Courts) Act, 1975, and that provisions of section 10 of the 1984 Ordinance are also similar to the provisions contained in section 7 of the 1975 Act. The principles laid down in the aforesaid judgments of this Court and the Lahore High Court on the power of the High Court to grant bail in pending cases before a Special Court constituted under the Ordinance of 1984 would, therefore, also apply to cases pending trial before a Special Court under the Suppression of Terrorists Activities (Special Courts) Act, 1975. The view of this Court and Lahore High Court, therefore, is that bail can be granted by the High Court to an accused, who is facing trial before a Special Court under the Ordinance of 1984. As the relevant provisions of the 1984 Ordinance and the 1975 Act are identical, following the principles laid down in the aforesaid judgments of this Court and the Lahore High Court, we hold that High Court has powers to entertain and grant bail applications moved by under‑trial prisoners facing trial before Special Courts constituted under section 3 of the Suppression of Terrorists Activities (Special Courts) Act, 1975.
We may observe here that no judgment, which has taken a contrary view, was cited by the learned Additional Advocate‑‑General. However, Mr. M.I. Memon, learned Additional Advocate‑General referred to a Full Bench decision of the Peshawar High Court in the case of Muhammad Gul v. The State 1985 P Cr. L J 205. According to the learned Additional Advocate‑General, in this judgment the Full Bench of the Peshawar High Court has apparently taken the view that bail can be granted by the High Court at the pre‑trial stage i.e. before the challan is submitted by the prosecution before the Special Court under the 1975 Act and not thereafter. We have gone through the entire judgment reported in 1985 P Cr. L J 205 and we find that the Full Bench has not held in this judgment that the High Court has no power after the trial starts. What has been held in this judgment of the Full Bench is that at the pre‑trial stage the High Court has power to grant bail, as in the case, which was under consideration, the matter was still under investigation and challan had not been submitted before the Special Court.
(b) The next objection of the learned Additional Advocate‑General that the first set of bail applications moved before the learned Special Court by the applicants were not pressed on the ground of delay and as such in view of the law laid down by the Supreme Court in the case of State v. Zubair P L D 1986 S C 173 the second set of bail applications before the Special Court on the ground of delay of about two years in the trial were barred. According to the learned Additional Advocate -General, the second set of bail applications were rightly rejected by the learned Special Court by order, dated 16‑10‑1986. In para. 8 of the judgment of the Supreme Court reported in P L D 1986 S C 173, it was observed by Supreme Court as follows:‑‑
"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, the 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 observations that as far as the remaining petitioners (the respondents herein) are concerned no case has been made out for their release on bail, does not mean that the application had riot 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 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."
In the first set of bail applications the ground of delay had been taken specifically as is apparent from the order, dated 24‑4‑1986. From the order, dated 24‑4‑1986 it is apparent that the ground of delay was taken but the learned Special Court did not consider that ground, as according to him, the point to be decided was whether there were reasonable grounds to believe that the applicants were involved in the commission, of a scheduled offence. As the question of delay had not been considered by the learned Special Court in the order, dated 24‑4‑1986 according to our view, the second set of bail applications could have been moved on the ground of delay before the same Special Court. Even if it is assumed that the learned Special Court had considered the ground relating to delay in the trial, the second bail application on the same ground of delay would be barred before; the learned Special Court, according to the law laid down by the Supreme Court in P L D 198r S C 173, but the applicants are not debarred from filing applications under section 497/498, Cr.P.C. before the High Court for grant of bail on the ground of delay. According to the Supreme Court, the second bail application before the same Court, which had earlier decided the bail application, would be barred and not a bail application to a higher Court seeking relief in respect of a ground which was not accepted by the trial Court. As regards the first set of bail applications in the cases under the Arms Ordinance, it is apparent that those applications were not pressed as bail had been refused in the main case under section 392, P.P.C.
The objection raised by the learned Additional Advocate‑General that the present bail applications are barred in view of the law laid down by the Supreme Court in P L D 1986 S C 173 is, therefore, not accepted.
(c) We may now deal with the objection raised by the learned Additional Advocate‑General that in any case bail can only be granted on merits to accused in cases being tried by Special Courts that is if there does not appear to be any reasonable ground for believing that the accused has been guilty of a Scheduled offence and not on the ground of delay. We are unable to accept this argument. It has already been held by this Court and in several judgments by the Lahore High Court referred to earlier that the powers of the High Court under section 497, Cr.P.C. remain unaffected by the provisions of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, and as the relevant provisions of the Ordinance, 1984 are identical to corresponding provisions in the Suppression of Terrorists Activities (Special Courts) Act, 1975, following the view taken by the Lahore High Court and by this Court, we may observe that the powers of the High Court under section 497, Cr.P.C. to grant bail to an under‑trial‑prisoner facing trial before a Special Court constituted under the Act of 1975, remain unaffected and for any of the grounds available under section 497, Cr.P.C. the High Court can, grant bail to such an under‑trial-prisoner. In such cases, therefore, the High Court can grant bail to an under‑trial‑prisoner if his case attracts the third proviso to section 497(1), Cr.P.C.
(d) The only other objection, that was raised by the learned Additional Advocate‑General, was that the case of the applicants comes within the mischief of the fourth proviso to section 497(1), Cr.P.C. and as such bail should not be granted to the applicants on the ground of delay.
Fourth proviso to section 497(1), Cr.P.C. is as follows:‑‑
"Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender or to person who in the opinion of the Court, is a hardened, desparate of dangerous criminal."
No allegation was made by the learned Additional Advocate‑General against any of the three applicants that he is a previous convict. The submission on behalf of the State was that a large number of criminal cases had been registered against each of the three applicants. Learned Additional Advocate‑General submitted that according to his instructions the applicants are involved in the following Criminal cases:‑‑
Against Abdul Sattar Morio:
(1) One murder case of 1975 in which he was acquitted.
(2) Crime Nos. 7/80, 8/80, 7/81, 10/81, 12/81 and 28/81 of Police Station Jam Shoro under Martial Law Regulations 1, 13 and 33.
(3) Crime No. 25/83 under section 392, P.P.C. of P.S. Jamshoro.
(4) Crime No. 39/83 under sections 302, 307, 427, 147, 353 and 148, P.P.C. of P.S. Gahejo of District Shikarpur.
(5) Crime No. 45/83 under sections 307, 353, 147 and 148, P.P.C. of P . S. Gahejo.
(6) Crime No. 5/84 under section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 of P.S. Bagarji.
(7) Crime No. 29/84 under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance 1979 of P.S. Quetta City.
(8) Crime No. 32/84 under sections 506, 504 and 447, P.P.C. of P.S. Jam Shoro.
(9) Crime No. 52/84 under sections 342, 352, 353, 307, .147 and 148, P.P.C. Of P.S. Jam Shoro.
Against Gul Muhammad Jakhrani:
(1) Crime Nos. 57/79, 38/80, 48/81, 53/81, 113/81 and 191/81 under Martial Law Regulations Nos. 1, 13 and 33 of P.S. Jam Shoro.
(2) Crime No. 21/84 under sections 506, 504, 323, 403, 14.7 and 148, P.P.C. of P.S. Jam Shoro.
Against Iqbal Tunio:
(1) Crime No. 170/81 under section 153‑A, P.P.C. and Martial Law Regulations 1, 13 and 33 P.S. Larkana.
(2) Crime No,. 194/81 under sections 323, 147 and 148, P.P.C. Of P.S. Larkana.
(3) Crime No. 44/81 under sections 323, 147, 148 and 142, P.P.C. of Police Station Larkana.
(4) Crime No. 140/82 under sections 153‑A and 123‑A, P.P.C. and Martial Law Regulation 13 of P. S. Larkana.
(5) Crime No. 40/83 under sections 323 and 147, P.P.C. of P.S. Larkana.
(6) Crime No. 41/83 under section 13‑D of the Arms Ordinance of P.S. Larkana.
(7) Crime No. 47/83 (No details given).
(8) Crime No. 101/83 under sections 323, 324, 147 and 148, P.P.C. of Police Station Larkana.
(9) Crime No. 32/84 under sections 504, 506 and 447, P.P.C. of P. S. Jamshoro.
(10) Crime No. 52/84 under sections 342, 352, 353, 307, 147 and 148, P.P.C. of P.S. Jamshoro.
After giving the above list, it was submitted by the learned Additional Advocate‑General that it is apparent that the applicants are hardened desperate or dangerous criminals, and as such, in spite of the delay of over two years in their trial, they are not entitled to bail in view of the provisions of the fourth proviso to section 497 (1) , Cr. P. C .
The learned Additional Advocate‑General was just able to give the aforesaid lists of cases which perhaps indicate that in the F.I.Rs. lodged in the aforesiad cases the names of the applicants also appear as accused. Nothing has been brought on record to show as to what were the actual roles played by or parts assigned to the applicants according to the prosecution; whether any investigation by the prosecution agencies took place in any of the aforesaid cases; whether the applicants were sent up for trial in any case; whether any process had been issued by any Court against any of the applicants in any case or cases. It has been noticed that only crime numbers have been given and in no case the case number or the Court before whom such case is pending has been given.
On the basis of the aforesaid scanty material comprising only, the crime numbers and sections of the P.P.C. and/or Martial Law l Regulation and nothing more, we cannot form an opinion that the applicants are hardened, desperate or dangerous criminals. Without placing adequate material on record on the basis of which the Court may form the opinion that the accused is a hardened, desperate or dangerous criminal, the prosecution cannot deprive the accused of the benefit of the third proviso to section 497(1), Cr. P. C .
10. The cases of the three applicants for grant of bail are covered by the third proviso to section 497(1), Cr.P.C. Over 2 years have passed since their arrest in these cases. Trials have not concluded. In fact trials have not yet commenced. Delay is not attributed to the applicants. Prosecution has not been able to make out any case for attracting the provisions of the fourth proviso to section 497(1), Cr.P.C. The three applicants have made out a case for grant of bail.
11. Criminal Bail Application No. 1556/86 is granted and it is directed that Gul Muhammad Jakhrani, Abdul Sattar Morio and Iqbal Tunio be released on bail in case No. 1/86 under section 392, P.P.C. on each of them furnishing one surety in the sum of Rs.30,000 with P.R. Bond in the like amount to the satisfaction of the Registrar of the Special Court.
Bail Applications Nos. 1557/86, 1558/86 and 1559/86 are also granted and it is directed that the applicants in these bail applications be released on bail in the cases under section 13‑D of the Arms Ordinance 1965 on each of them furnishing one surety in the sum of Rs.15,000 with P.R. bond in the like amount to the satisfaction of the Registrar of the Special Court.
S.G.D./G‑1/K Bail granted.
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