P L D 1999 Karachi 345 (PLP)

The facts giving rise to the present bail application are that the applicant i.e. Muhammad Saeed son of Muhammad Nazir, belonging to M.Q.M. (Haqiqi Group) was implicated through an F.I.R. No.182 of 1996 registered at Malir City Police Station, District Malir. Karachi on 24-11-1996 at 20-05 hours in relation to an incident which was alleged to have occurred on 24-11-1996 at or about 18-50 hours.

2. The F.I.R., based upon the complaint of A.S.I. Muhammad Imtiaz Hussain Shah, confirms that while the complainant alongwith the subordinate staff of the Malir Police Station was patrolling in the area in a police mobile, an information was received that M/s. Rehan, Ghulam, Ghulam Abbas, Naeem Mela, Kamran alias Babo., Muzaffar Rangar, Khadim Hussain, Saeed alias Munna, Nasir, Bali and others, belonging to M.Q.M. (Haqiqi). being armed with fire weapons were collectmk "Chunda/Bhatta" forcibly from the public at their unit office situated in Ch:iman Colony, Khokharpar, near Ahmed Raza Chowk. Malir City. On having, received the information the police party reached the area to find and witness the above named persons, who indiscriminately opened fire. on the police part` with the intention to kill the police officers, in collusion with each other, while causing hindrance in the performance of public duty by the police officials. It is further alleged in the F.I.R. that the police opened counter fire in self-defence of their own as also that of innocent people in the vicinity whose life had been threatened by such events. It is further stated that in view of the firing the Government A.P.C (_police mobile) received bullets, however, no loss of life or property occasioned It is further contended in the F 1 R. that the above persons fled .the scene b5 taking advantage of the darkness and the narrow alleys. The police. however, recovered six unused and nine completely used receipt books of "Chunda" of M.Q.M. (Haqiqi) left by such persons; each receipt book contained 25 receipts of Rs.10 each. Also empty shells of two 7 mm pistol/gun and 26 klashnikovs were left on the scene. The police prepared a possession memo. of these recoveries from the place of incident and the F.I.R: in question was registered under section 324 of the Qisas and Diyat Ordinance read with sections 148;353, 186 and 34 of the P.P.C.

3. The learned counsel for the applicant has argued that the F.I.R. was lodged on 24-11-1996. while the applicant was arrested on 3-5-1998 and in incriminating weapon was recovered from him; no specific role has been attributed to him, no person was injured or any damage caused to the property, no identification parade took place; the offences do not fall within the prohibited clause of section 497 of Cr.P.C., the offences carrying terms of less than 1(1 years, and as such the applicant is entitled to hail the case being that of further inquiry. In view of this it is further contended that the learned Additional Sessions Judge- Malir (Mr. Shah Nawaz Tariq) was not justified in declining hail through his order dated 14-1Q-199R 4 On the other hand, the learned counsel for the State has vehemently contended that the recoveries were made from the place of occurrence of the offence and the applicant being a hardened criminal, no one from the locality. was prepared to stand as a complainant or a Mashir though many persons apart from the police party witnessed the incident and watched the applicant committing the crimes as alleged to the F.I.R. As regards the delay in arresting the applicant, it is contended that the applicant had gone underground and as and when he was found, he was arrested without any delay. It is further stated at the bar by the learned counsel fop the- State that the Fl R. was registered expeditously without delay and there is ample evidence to connect the applicant with the crimes as alleged,

5. I have given serious thought to the matter at hand. The Courts of law working under- the Consumption and dispensing criminal ,justice cannot be oblivious to the rampant law and order situation prevalent in the city, including the supernormal hike in crime rate. The ethos behind administration of criminal justice is to ensure not only, fair trial and justice to the accused but also to develop principles of law through the process of interpretation and construction whereby increasing crimes in the society could be curbed. In one of the cases authored by me i.e. Dr. Ghous Muhammad, J. reported as Muhammad Shafique v. The State 1998 PCr.LJ 1299, this Court while declining bail to an accused involved in car snatching at gun point observed that such an. act constituted an act of terrorism and the person involved in such an act was a 'hardened, dangerous of desperate criminal" within the meaning of section

497. Cr.P.C. Muhammad Shafique was followed by my learned brother Muhammad Roshan Essani, J while dismissing the Criminal Bail Application No 460 of 1998 of the co-accused his order was appealed in the Hon'ble Supreme Court which was dismissed through :m order reported as Rizwan Hussain v. The State. 1999 SCMR 131, wherein the Supreme Court also observed that the Judges of the High Court; while dispensing criminal justice could not be oblivious to the high incidents of cases of car snatching in the city of Karachi. In this manner the judgement in Muhammad Shafique found approval by the Supreme Court in Rizwan Hussain, albeit indirectly, though categorically establishing the principle of law that the Courts cannot be oblivious to the hike in crime rate and the adverse law, and order situation in formulating guidelines of criminal justice. It could not be out of place to mention that our own Supreme Court in (Imtiaz? Ahmed v. The State, PLD 1997 SC 545 has correctly observed that the Courts in dealing with crimes directed against the society at large have to be cautious in _giving bail Even the oft-cited dicta of the Supreme Court in Tariq Bashir v. ,lie State PI.D 199.5 SC 34, confirms that in exceptional. and extraordinary cases hall pan he declined even in -cases where the alleged offences carry imprisonment of less than 10 years. 7o my mind such extraordinary and exceptional - circumstances would be available where the crime as alleged is directed against the society at large as observed to lmtiaz Ahmad.

6. Coming to the case at hand, the allegations of unlawful "hat collections', locally termed as "Bhattas/Chundas", possession of illicit and unlicensed weapons, and wrongful use thereof obviously constitutes acts of ,.terrorism (for definition of the term "terrorism", see Muhammad Shafique, cited t supra, at page 1303. These are quintessentially crimes directed against the society at large. The applicant was found by the police committing the crimes of unlawful Bhatta collections as also firing on the police with illicit weapons. It has been alleged by the prosecution that the police was unable to get an independent Mashir to be the complainant in the F.I.R. as the applicant had terrorised the area and the people were afraid to come forward. The prosecution story carries weight as such is the menace of terrorism that all of us, especially the common man; living in the city are witnesses and victims of these crimes on lay i,? day basis, in that gangsters of groups and parties have virtually taken the entire Lit y as a hostage. It is quite possible, in fact highly probable than not, that despite persons having seen the applicant committing the crimes as alleged. none !iave come forward due to their own personal safety. It is needless to mention that the law enforcing agencies are equally to be blamed for the state of affairs prevalent in the city; such agencies are known to coerce the innocent masses and provide shelter and refuge to the criminals; a person in dire want of help of the police may find himself to land from the fire into the fire pan if he proceeds to the police for such help Unfortunately, we are passing through such hard times that in order to register even an F.I.R. the citizens may have to knock the doors of this Court or grease the palms of the police.

7. Be that as it may, the prosecution version in the present circumstances ;s not incredible. As already stated above, the allegations against the applicant constitute crimes directed against the society. Pressing the dicta in Imtiaz Ahmed I find this application to be devoid of any merit and the impugned order require ,no interference. However, the prosecution should expedite the investigation and? the trial be concluded as early as possible. 8.????????????? By short order this bail application was dismissed on 29th December, 1998. The above are the reasons therefor. N.H.Q./M-412/K???????????? Bail refused. .