1995 PLP 1443 (MLD)

I. A. Hashmi for Applicant. K. M. Nadeem, Asstt. A. G. for the State.

1. ABDUL RAHIM KAZI, J.‑‑‑Granted.

2. This Bail Application has been moved on behalf of the applicant who is involved in the case registered as F.I.R. No. 19 of 1994 with Police Station C.I.A., Saddar, Karachi (East) under section 365‑A/218/220, P.P.C. The allegations as made in the F.I.R. are that the police had received an application made by the complainant to the Advisor to Chief Minister Sindh and Member Chief Minister Inspection and Evaluation Team, Sindh, Karachi which was incorporated as the F.I.R. under section 154, Cr.P.C. The allegations made in the F.I.R. are that on 30‑3‑1991 at 20‑45 hours the then D.S.P., C.I.A., Karachi and other policemen came to the residence of the complainant in their official vehicles alongwith Inspector Raja Karamat. The said D.S.P. raided the house of the complainant and took a search and during course of that action he seized licensed arms of the complainant i.e. one K.K. 27 M.M. Rifle, four (4) Pistols and a Shot Gun which the police had taken away with them in spite of the complainant's showing valid licences. It is also alleged that the police party had apprehended Badshah Khan, Namdar Khan and complainant's father Gul Habib. The complainant went to C.I.A. Centre where he learned that his father and the said two others were arrested in a fabricated case under Arms Ordinance by the C.I.A. concealing their licences. The complainant then tried to contact the C.I.A. Chief who then was the present applicant through Nawab and Patwari, who were reputed to have contacts with the applicant. An amount of Rs. 4 million was demanded by way of ransom to release the said persons. However, this amount was brought down to Rs. 6,00,000 which were arranged and paid by Maddi (Nazeer Ahmed) in the presence of the complainant whereupon the three kidnapped persons were released. The P.W. Maddi (Nazeer Ahmad) had given such statement before Lt. Col. Shafiq‑ur Rehman, the Chief of the Team making enquiry into the crimes committed by the present applicant but no action had so far been taken. The Police after recording the F.I.R. also recorded the statements of the witnesses as took‑up investigations. An interim challan was produced on 30‑1‑1994 whereby the present applicant was sent up to stand trial while co‑accused Ehsanullah and Raja Karamat were placed in column No.

2. Subsequently on completion of the enquiry final challan was submitted on 8‑2‑1994. A Bail Application for the present applicant was moved before the trial Court which has been rejected, and, therefore, this Bail Application. We have heard Mr. I. A. Hashmi, the learned counsel for the applicant and Mr. K.M. Nadeem, the learned Assistant Advocate‑General, Sindh for the State. At the very outset, Mr. K.M. Nadeem, the learned Assistant Advocate-?General has pointed out that the challan has also been submitted regarding co?-accused Irfanullah Marwat as the investigations revealed material evidence of his involvement in the case. The learned counsel for the applicant has argued that in the present case the F.I.R. is delayed by about three years and a simple reading of the F.I.R. would show that all actions allegedly taken, arrests of the complainant's father and others made, seizure of weapons done, amount of ransom demanded and accepted are all acts which are done by persons other than the present applicant and that there is no direct involvement of the applicant in the present case. He has further argued that there is no overt act attributed against the present applicant. From this the learned counsel has submitted that in this view of the matter the present applicant would be entitled to grant of bail as the question of vicarious liability of the present applicant is yet to be determined. The learned counsel has further argued that the present case is one which calls for further enquiry and the applicant would also be entitled to benefit of doubt. Mr. K. M. Nadeem, the learned Assistant Advocate General Sindh for the State has vehemently opposed this Bail Application and has pointed out that the delay in lodging the F.I.R. would not be fatal in every case and the same principle cannot be taken to be of universal application but each case would depend on its own circumstances. The learned Assistant Advocate?-General has urged the statements of the witnesses and the complainant as recorded under section 161, Cr.P.C. and has submitted that these statements do show the involvement of the present applicant in commission of the alleged offence and it is he at whose instance the whole exercise was undertaken by the C.I.A. Police with the intention to recover the ransom money as demanded above. He has also submitted that the determination of the question of vicarious liability would involve appraisal of entire prosecution evidence which could only be done at the trial and not at the bail stage. The learned Assistant Advocate‑General has lastly submitted that there is sufficient material on the record to show the involvement of the applicant in the case and the question of further enquiry at this stage does not arise. Both the learned counsel have placed reliance on a number of judgments of the superior Courts which we will discuss hereunder while dealing with each point urged by the learned counsel. It may be observed that the Court while hearing a Bail Application at the initial stage of the case has to take into consideration the allegations made against the accused in F.I.R., the evidence which prosecution proposes to produce before the Court and the defence plea if any raised by accused. It may be observed that orders on Bail Applications cannot be based in vacuum but the Court has to make a tentative assessment of whatever material is placed before it without going into deeper appreciation of the same. Reliance can be placed on the case of Syed Qaim Ali Shah v. The State (1992 P Cr. L J 9) and the case of Khalid Javed v. The State (PLD 1978 SC 256). Their Lordships have been pleased to hold that Courts in the matter of bail have to go by its assessment of common course of natural events, human conduct, public and private persons in their release to the facts of the particular case and to resort to tentative sifting of evidence. However, this tentative sifting of evidence is distinguished from elaborate and deeper sifting of evidence which is not to be resorted to at the time of the consideration of the Bail Application. Similarly in the case of Manzoor and 4 others v. The State (PLD 1972 SC 81), their Lordships have been pleased to hold that it is not correct to withhold the bail as punishment in a non‑bailable offence but such is a matter within the discretion of the Courts which discretion has to be exercised with due care and caution. In this very case their Lordships have further held that the onus is on the prosecution to disclose those reasonable grounds by which the prosecution connects the accused person with the alleged crime and the Court has to examine data available in the case to find out if reasonable grounds exist to connect the accused persons with the alleged crime. Also in the case of Ameer v. The State (PLD 1972 SC 277) the Honourable Supreme Court has held that even at the bail stage the accused would be entitled to benefit of doubt and that the law is not to be stretched in favour of the prosecution. Keeping these principles in mind we now proceed to take up points urged and discuss the same as under: The first ground urged by the applicant is that the F.I.R. is hopelessly belated and, therefore, a doubt is created in favour of the applicant. He has placed reliance on the following cases: (1) Karim Hyder v. The State (1986 SCMR 938). (2) Dildar v. The State (1978 P Cr. L J 698). (3) Kali and others v. The State (1978 P Cr. L J 766). (4) Amjad Ali v. The State (1994 P Cr. L J 87). In the first case relied upon by the applicant the matter involved pertains to the commission of Zina by the accused wherein the F.I.R. was registered at a delayed stage and the only evidence against the applicant was the recovery of dead body from a well. In the second case also the matter involved was abduction of young woman and the only evidence available against the accused was the statement of the mother of abductee recorded three years after the incident. The abductee had not been recovered in the case, therefore, there was no corroborative evidence available. The third case pertains to allegation of accused having snatched the radio set and wrists‑watch and that eight witnesses called by the prosecution for proof of charge against accused had all repudiated the same as false. In the fourth case, the point involved in the murder case on which the bail was granted was that there was also no tangible material' linking the applicant with the commission of the alleged crime in addition to the ground of unexplained delay. As against this the learned Assistant Advocate‑General relying on the case of Arbab Shah v. The State (1976 P Cr. L J 40) has submitted that the delay in lodging the F.I.R. is not necessarily fatal to prosecution in each case. He has submitted that the facts in every case have to be taken into consideration in assessing the evidence. The learned A. A. G. has pointed out that in the year 1991 the applicant was a very high ranking Police Officer who also had the charge of the C.I.A. Police and he reigned with terror and nobody could have dared to raise a finger against him. The learned A. A. G. has further pointed out that his cousin co‑accused Irfanullah Marwat was then the Advisor in the Provincial Government having the charge of Home Department which, is the Department under which the Police and Executive magistracy fall. In these circumstances a private citizen who had already been put to such unlawful confinement, torture and extortion could not have found the courage to approach any authority. According to the learned Assistant Advocate‑General it was only after the new official set‑up was inducted and these two accused were removed from the power and authority that they had earlier that the present applicant and his brother‑in‑law who had paid the ransom amount approached the Lt. Col. Shafiqur Rehman, Chief of the Team making enquiry against the present applicant which fact is also mentioned in the complainant's application on the basis of which the present F.I.R. is registered. He has then pointed out that the two other police officials, namely, Raja Karamat and Ehsanullah Gondal have implicated the present applicant. This Raja Karamat in his statement under section 161, Cr.P.C. states that at the instructions of his D.S.P. Ehsanullah Gondal he arrested the accused Gul Habib and then raided his residence from where they recovered the abovesaid weapons and arrested two other persons Namdar and Badshah who had reached there. He has also stated that he had informed his D.S.P. that the accused state that they have licences for the weapons but the D.S.P. told him that the information of the present applicant is that these are forged licences and, therefore, proceedings should be taken against the three accused. The D.S.P. Ehsanullah Gondal in his statement has stated that on 30‑3‑1991 the present applicant (the then D.S.P., C.I.A.) had directed him to go and arrest Gul Habib from Artillery Police Station as the accused of abduction for ransom take refuge with him and also to raid his house and recover unauthorised weapons. It was inconsonance of the above instructions of the present applicant that the said action was taken against the three accused and cases registered against them under Arms Ordinance. P.W. Nazeer Ahmed @ Maddi has in his statement implicated the present applicant as demanding Rs. 4 million. He also states that the P.W. Nawab had spoken to co‑accused Irfanullah Marwat, who had talked to present applicant and the amount was reduced from Rs. 4 million to Rs. 6 lacs. This P.W. Nawab who is also an important arid material witness in the case has since been murdered and so also Gul Habib the alleged accused. From this the learned Assistant Advocate‑General has argued that the inference would be that the accused in the present case have got these persons murdered in order to remove any available evidence against them. All this material at present shows sufficient involvement of the applicant in the case. The only plea taken by the applicant is that the action taken against him shows mala fide intentions on the part of the complainant as well as the authorities concerned of falsely involving him in the case. No mention for such allegations has been made in the grounds taken in the Bail Application. It may be observed that in a criminal case every case has its own attending facts, features and circumstances. The facts of every case have to be assessed on their own strength and material available on record. In these circumstances as discussed above we are of the view that there is sufficient force in the contentions of the learned Assistant Advocate‑General and the delay in lodging the F.I.R. would stand explained. The next point urged by the learned counsel for the applicant is that this is a case of further enquiry and it is yet to be determined if the present applicant would be vicariously liable in the present case. He has placed reliance on the case of Arbab Ali v. Khamiso (1985 SCMR 195). In this case the Honourable Supreme Court had observed as under: "Bail can be allowed in a case otherwise allegedly falling under the prohibition contained in subsection (1) of section 497 under subsection (2) of section 497, Cr.P.C. when there are sufficient grounds for further inquiry into the guilt of the accused but only the condition when the Police Officer or the Court at any stage of investigation, inquiry or trial, as the case may be, comes to a definite conclusion that there are no reasonable grounds for believing that the accused has committed a non‑bailable offence. Without this finding bail cannot be allowed under subsection (2) on mere ground that there are sufficient grounds for further inquiry." In view of the above principles laid down it may be observed that the Court holding the case to be of a further enquiry or trial as the case may be, has to give definite conclusion that there are no reasonable grounds for believing that the accused has committed a non‑bailable offence. In view of the above discussion we have observed that there is sufficient material on the record to given rise to an inference that there are reasonable grounds for believing that the accused is involved in the commission of the alleged crime. As discussed above there is material on the record to show that the whole exercise was done by the subordinate officers of the present applicant under his instructions and that the demand of ransom is alleged to have been made by the applicant and was paid to him. Of course, co‑accused Irfan Ullah Marwat is also shown to have been involved or to have acted as intermediary in the demand and receipt of the ransom amount. These points, however, would require the appraisal or appreciation of the entire evidence. In the case of Muhammad Riaz v. The State (1994 P Cr. L J 149) which has been relied upon by the learned counsel for the applicant bail was granted by a learned Single Judge of Lahore High Court on the .considerations of the grounds that the accused was alleged to have caused a simple injury in the form of a mere abrasion and that the question of the vicarious liability had yet to be determined. As against this the learned Assistant Advocate‑General has placed reliance on the case of Nisar Ahmed v. The State (PLD 1971 SC 174). In this case the Honourable Supreme Court has held that the contention that section 34 was not attracted in the case to make accused constructively liable for offence of murder involved appraisal of entice prosecution evidence which could not safely be undertaken by High Court hearing the Bail Application and the leave was refused to the accused. In view of the above discussion we are of the view that the contents of the F.I.R. and the evidence proposed to be produced by the prosecution which is in the statements recorded under section 161, Cr.P.C. and the above corroborative material available, there are reasonable grounds to believe the involvement of the present applicant in commission of the alleged crime. In such circumstances, we are of considered view that the applicant has no case for grant of bail. Accordingly this Bail Application is rejected. Above are the reasons of the short order announced by us in the Court on 16‑3‑1995. N.H.Q./S‑1134/K??????????????????????????????????????????????????????????????????????????????????????????? Bail refused.