1999 P Cr (PLP)

The facts leading to the present application for bail are that applicant/accused Muhammad Ali is facing trial in Sessions Case No.339 of 1996, before learned VIIth Additional Sessions Judge, Karachi (East) which has arisen out of F.I.R. No. 194 of 1996 of Police Station Saudabad, Karachi (East), under sections 324 and 342, P.P.C. read with section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979.

2. The brief facts of the prosecution case are that on 7‑9‑1996 applicant/accused Muhammad Ali alongwith his three associates, duly armed with pistols, entered in the house of complainant and at the point of these fire‑arms they wrongfully detained the inmates of the house in a room and robbed the golden and silver ornaments, cash and watches. After committing robbery while they were making preparation to flee from the scene of offence police party reached there. On seeing the police, accused opened fire on police party whereupon encounter took place in which police succeeded in apprehending the accused on the spot. From the possession of applicant/accused one pistol of .32 bore and golden ornaments which were robbed were recovered. After usual investigation applicant/accused was sent up to stand trial.

3. The applicant/accused applied for the bail but his request was turned down by impugned order, dated 25‑5‑1998.

4. I have heard learned counsel for the applicant/accused as well as Mr. Muhammad Ismail Memon, learned counsel for Advocate‑General for the State. The latter has stated that on merit no case for bail is made out. He, however, conceded to the grant of bail to the applicant/accused on account of his tender age.

5. The perusal of material on record shows that applicant/accused alongwith co‑accused, duly armed with fire‑arm, barged into the house of the complainant and after making them hostage at the point of fire‑arms and putting the inmates of house in fear of death they committed the robbery of golden/silver ornaments, cash and watches. They were arrested on the spot by the police and recovery of stolen property was made from the possession of applicant/accused alongwith weapon of offence. Complainant and three independent Mohalla people figure as eye‑witnesses of the incident and recover etc. and no enmity has been suggested or pointed out with complainant or police., Prima facie, applicant/accused is liable under section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 324, P.P.C. Thus, the contention of the learned counsel that only attempt was made and no independent prosecution witness is cited by the prosecution and that no offence under which applicant/accused has been charged is made out is devoid of force.

6. The applicant/accused cannot be given the benefit of proviso (3) to section 497, Cr.P.C.

7. The act of the applicant/accused amounts to an act of terrorism. The case of applicant/accused is hit by proviso (4) to section 497(1), Cr.P.C., therefore, he is not entitled to bail on the ground of statutory delay. In this context, I am fortified by an unreported decision of Division Bench of this Court in the case of Dhani Bux and others v. The State Criminal Bail Application No.289 of 1998, to which I was one of the members of that Bench.

8. The contention of the learned counsel that applicant/accused is a minor and that since co‑accused Sabir Ahmed was granted bail by the trial Court, therefore, applicant/accused is also entitled to bail on the rule of consistency. This contention of the learned counsel is misconceived.

9. No material by way of any birth certificate or any other documentary evidence has been placed on the record from which it could be ascertained that applicant/accused is of tender age. Mere assertion that applicant/accused is a minor is not sufficient. The rule of consistency is also not available to the applicant/accused as co‑accused Sabir Ali med was certified by the Medical Superintendent to be of tender age, whereas in respect of applicant/accused there is nothing on record except the oral submissions made in this regard.

10. For the foregoing reasons, I do not agree with the learned counsel for the applicant/accused and learned State Counsel that this is a fit case for bail. Consequently, the bail application of the applicant/accused stands dismissed.

11. The observations made hereinabove are of tentative nature and they should not in any way influence the trial Court while finally adjudicating the case upon merits upon the evaluation of evidence brought on the record by the prosecution at the stage of trial. N.H.Q./M‑394/K Bail refused.