2008 PLP 1473 (MLD)

KHAWAJA NAVEED AHMAD, J.--By this common order, I intend to dispose of Criminal Bail Application No.139 of 2008 and Criminal Bail Application No.140 of 2008, arising out of F.I.R. No.107 of 2007 of Police Station Solider Bazar, Karachi, under section 395, P.P.C. In this case, Bail Application No. 861 of 2007 filed by the five applicants, including the present four applicants, was rejected on merits by my learned brother Salman Ansari, J (as he then was) by order, dated 10-10-2007, the operative portion of which is reproduced hereunder:-- "Having heard the arguments of the learned counsel for the applicants/accused and the learned counsel for the respondent. That no evidence has yet been recorded in this case and the punishment for section 395, P.P.C. for which accused have been charged falls within the prohibitory clause to section 497, Cr.P.C. which is not bailable and in my opinion, until and unless the complainant and one material witness are examined, no case of bail is made out at this stage. Bail application stands dismissed. The trial Court is directed to expedite the proceedings in the case and examine at least two material witnesses as mentioned above, within a period of two months. Order accordingly. Bail application stands disposed of." The present applicants have repeated this bail application directly in the High Court and this Court by order, dated 25-2-2008 has called comments from the learned trial Court. Comments have been sent by the learned link Judge, Abdul Razzak, who has annexed photocopy of the comments sent earlier by Aijaz Ali Khaskheli, VI Additional Sessions Judge, Karachi (East), dated 8-3-2008, which are reproduced here under:- "I have the honour to submit that while disposing of Criminal Bail Application 861 of 2007 on 10-10-2007, the Hon'ble High Court of Sindh was pleased to direct that at least two material witnesses may be examined within a period of two months. The said order was received on 19-11-2007. The proceedings of the case were expedited. The police papers were supplied to the accused. The formal charge was framed on 1-12-2007. After which, I went busy in election duty as Returning Officer. Subsequently, I proceeded on leave for 45 days in all and have resumed duties on 6-3-2008. Therefore, required witnesses could not be examined with the stipulated period." I have heard the arguments of learned counsel for the applicants, the State and have perused the record. Mr. Ismatuallh Khan Niazi, learned counsel for the State has strongly opposed this bail application and has stated that the trial Court was busy in election work and as such the order of this Court could not be complied with. He states that the comments given by the learned trial Court are satisfactory and time for recording evidence of material witnesses may be extended. From the contents of the F.I.R. it transpires that the accused/applicants have been arrested from the bungalow, which is place of incident. It appears that the accused may not be dacoits but may be the gang persons of land mafia who are involved in occupying vacant bungalows on gun point in absence of the owner by throwing chowkidars out of the premises. However, it is yet to be determined whether it is a case of dacoity or it is a case of gang of persons of land mafia. This matter, therefore, requires evidence and this point will be decided only through evidence. In the meantime, I hold that this is a fit case for holding further inquiry under section 497(2), Cr.P.C. into the nature of the offence. In the meantime I grant bail to the applicants upon their furnishing surety in the sum of Rs.100,000 each with PR bond in the like amount to the satisfaction of the trial Court. The observations made by me herein-above are tentative in nature. The trial Court is directed not to be influenced by the observations made in this order and decide the case upon merits and evidence, which comes on record before it. The trial Court is also directed to conclude the trial within six months from the date of receipt of this order and report compliance through MIT. H.B.T./M-107/K Bail granted.