2001 P Cr (PLP)

The petitioners namely Muhammad Hanif, Muhammad Boota, Muhammad Nadeem, Muhammad Waseem, Muhammad Razzaq, Muhammad Rafique and Muhammad Raees while confined in Central Jail, Adiyala, Rawalpindi in a case under sections 365‑A, 324, 380, 148, 149, P.P.C. registered against them vide F.I.R. No.33, dated 28‑4‑1999 at Police Station Chotala, District Jhelum have moved this application under section 497, Cr.P.C. for grant of bail before this Court on refusal of the same by the trial Court.

2. The brief facts as narrated in the F.I.R lodged by Malik Shafaat are that on 27‑4‑1999 at midnight time he on information given to him by Muhammad Rafique that Malik Shaukat and his nephew namely Shahbaz who were sleeping at the roof top of the house of Muhammad Inayat were taken out of village by five persons at about 2310 a.m. (after midnight). The said persons being armed with deadly weapons under threat of life compelled Malik Shaukat and his nephew to accompany with them and when they reached at a distance of about three miles from the village they were identified as named in the F.I.R. The accused allegolly having caused fire‑arm injuries to Shahbaz Ahmad took Malik Shaukat to an unknown place. The complainant alongwith the witnesses while chasing the accused having found Shahbaz Ahmad lying in an injured condition removed him to the village to provide necessary medical aid. The motive behind the occurrence as narrated in the F.I.R. was that Muhammad Hanif and Muhammad Boota had grudge against Malik Shaukat who was subsequently, released by the accused after taking an amount of rupees one crore as ransom money. Malik Shaukat was released by the accused on 3‑5‑1999 and same day he while appearing before the police got his statement recorded under section 161, Cr.P.C. in which he narrated the story of his abduction and confinement in detail. However, the victim being dissatisfied with the police investigation later filed a complaint under sections 365‑A, 324, 380, 336, 148, 149, 109, P.P.C. read with section 7 of the Anti‑Terrorism Act, 1997 in the Special Court No.1 at Rawalpindi established under Anti Terrorism Act, 1997. The victim namely Malik Shaukat in the private complaint stated that on 24‑4‑1999 the petitioners armed with fire‑arms took him alongwith Muhammad Rafique and Shahbaz Ahmad with them when they were sleeping at the roof top of the house on gun‑point outside the village and after reaching at some distance they fired at Shahbaz Ahmad and caused fractures of his both legs. The accused having kept the victim under constant threat to kill directed Muhammad Rafique to go to the village and arrange ransom amount of rupees one crore for the release of Malik Shaukat and while taking the complainant to the hilly area directed him to send a message to his father‑in‑law namely Haji Muhammad Hayat through their man for the payment of rupees one crore to them as ransom for his release till 30‑4‑1999 and in case the needful would not be done before the target date the abductee would be killed. The complainant on the direction of the accused sent a message in writing to Haji Muhammad Hayat for doing the needful. However, the accused extended the time for payment of amount in question till 3‑5‑1999. The accused remained in contact with Hall Muhammad Hayat father‑in‑law of the complainant to know about the arrangement of the money and ultimately on receipt of an amount of rupees one crore from Amir Mehmood brother of Malik Shaukat released him from their custody. It is stated in the private complaint that the police being in connivance with the accused party suppressed the true facts in the F.I.R. and also has not properly investigated the case. However the statement of the complainant namely Malik Shaukat recorded by police under section 161, Cr.P.C. contained the same facts which were subsequently introduced by him in the private complaint. Initially a case under sections 365, 324, 380, 148, 149, P.P.C. was registered and the petitioners were allowed bail by the learned Sessions Judge vide order, dated 12‑10‑1999 but later on, on the addition of section 365‑A, P.P.C. the forum of trial was changed from the Sessions Court to the Special Court established under Anti‑Terrorism Act, 1997 and consequently the petitioners moved an application for the grant of bail before the Special Court which was dismissed vide order, dated 17‑2‑2000. The learned Special Judge, however, having summoned the petitioners in the private complaint directed them to submit bail bonds under section 91 of Cr.P.C. Earlier the petitioners moved a similar application Criminal Miscellaneous No.204/B of 2000 before this Court for grant of bail y were allowed bail in the private complaint relating to The bail was declined to them, by this Court but a issued to the learned trial Court to proceed with the trial and make efforts to conclude the same within two months.

3. The learned counsel for the petitioners has contended that despite direction of this Court, the 'trial was still at the same stage and that since earlier this Court disposed of the bail application of the petitioners on merits, therefore, they, without moving the trial Court have directly filed this application before this Court for the grant of bail. The learned counsel for the petitioners has raised the following contentions:‑‑ (a) That the story of the F.I.R. is .in conflict to that of the story introduced in the private complaint and consequently a reasonable doubt would be created in the truthfulness of the allegation. (b) That since the petitioners have been allowed bail in the private complaint pertaining to the same occurrence, therefore, there would be no justification to refuse bail to them in the challan case. (c) That while keeping the story of F.I.R. in juxtaposition with the story of private complaint the reasonable grounds would exist to believe that the petitioners have not committed the offence with which they were being charged. (d) That the prosecution story on the face of it is improbable and baseless. (e) That unless the petitioners are found guilty of the charges in the private complaint, the challan case against them would remain under clouds and fall within the ambit of subsection (2) of section 497, Cr.P.C. for the purpose of bail.

4. The learned counsel while summing up has submitted that in the given facts the petitioners by virtue of subsection (2) of section 497, Cr.P.C. have earned a right to claim the concession of bail pending disposal 'of the case against them. The learned counsel also argued that non‑conclusion of trial within the time given by this Court would create a right in favour of the petitioners to claim the concession of bail,

5. The learned counsel representing the complainant on the other hand has vehemently contended that accused were summoned in the private complaint through the procedure provided under Chapters XVI and XVII, Cr.P.C., therefore, they would not be entitled to claim bail as of right in the police case on the basis of concession of submission of bail bond given to them in the private complaint. He submitted that in the private complaint after recording the preliminary evidence if Court is satisfied that accused should be summoned, the process is issued and accused can be directed to submit bail bonds in terms of section 91, Cr.P.C. whereas in the police case for the purpose of grant of bail in the non‑bailable cases the evidence collected by the police during the investigation is tentatively assessed and it the Court finds that there are reasonable grounds for further inquiry into the guilt of an accused, the bail is normally granted. In the present case there was ample evidence in the hand of prosecution in support of allegations of abduction and demand and payment of ransom, therefore, apparently commission of an offence punishable with capital sentence is established. The learned counsel placing reliance on Maqsood Begum v. Muhammad Maroof 1998 PCr.LJ 56 contended that the bail in a case of capital punishment is always granted or refused in the light of material placed before the Court and unless the Court comes to the conclusion that there was no reasonable ground to believe that a person has committed an offence punishable with death or imprisonment for life, he would not be entitled to claim the benefit of subsection (2) of section 497, Cr.P.C. The learned counsel finally argued that since the evidence in the case is being recorded and it is expected that trial shall be concluded without consuming much time, therefore, the grant of bail at this stage to the petitioners would necessarily cause prejudice to the prosecution. The learned counsel has placed reliance on Muhammad Ismail v. Muhammad Rafique PLD 1989 SC 587 and Allah Ditta and others v. The State 1990 SCMR 307 in support thereof.

6. The learned State Counsel while adopting the arguments advanced by the learned counsel for the complainant has opposed the‑grant of bail to the petitioners.

7. W have heard learned counsel for the parties at length and perused the record. The prosecution story in the present case is divided into two parts. The first part relates to the statement of Malik Shafqat as contained in the F.I.R. and the second part was narrated by Malik Shaukat the victim of the occurrence in his statement under section 161, Cr.P.C. The events which happened during the period from the date of taking Malik Shaukat by the accused towards jungle till his release would only, be either in the knowledge of the petitioners or the victim and no one else would have direct knowledge of the said events. The statement of Malik Shaukat under section 161, Cr.P.C. was recorded by the police on his release by the accused on 3-5‑1999 and perusal of the same would show that there was no material difference of said statement to the story of the private complaint. Therefore, the omission of the facts in the F.I.R. which were not in knowledge of first informant would not be a circumstance to suggest that the two stories were in conflict to each others. The complainant patty having taken notice of partiality of police for not investigating the case on proper lines preferred to file the private complaint with introduction of additional facts which could not be made part of F.I.R. We have not been able to trace out any enmity between the parties to accept the contention that complainant party cooked a false story of abduction and release of abductee against payment of one crore rupees. The tentative assessment of the evidence in the hand of prosecution would prima facie show that there are reasonable grounds to believe that the petitioners have committed the crime with which they were being charged and would not be entitled to the concession of bail by virtue of subsection (2) of section 497, Cr.P.C. 'The submission of bail bonds under section 91, Cr.P.C. upon issue of process in a private complaint under section 204, Cr.P.C. would not be a ground to ipso facto bring the police case involving capital punishment within the ambit of subsection (2) of section 497, Cr.P.C. The case in hand being of extremely serious nature, we do not consider it a convincing ground that trial was not concluded within the time given by this Court, for grant of bail. We being conscious of the fact that the trial is in progress as the statements of the few witnesses have been recorded, the expression of opinion even on the basis of tentative assessment of the' evidence in either way at this stage may cause prejudice to either party and, I therefore, without diluting upon the matter in detail dismiss this petition. However, we direct the trial Court that unnecessary delay in the trial should be avoided and efforts should be made to conclude the same expeditiously. N.H.Q./M‑543/L Bail refused.