2001 PLP 921 (MLD)

ALI MUHAMMAD BALOCH, J.‑‑‑‑These three bail applications are filed by the accused Muhammad Hashim, S. Zakir Hussain, S. Kashif Hussain and S. Ahmed Hussain, who are accused in three different cases but the ground for their release on bail is one and the same.. They claim that since they have remained in jail for a period more than 2 years and the trial has not concluded, for no fault on their part they are entitled to be released on bail, as they have earned the right to be released on bail, on account of statutory delay. Therefore, all the three bail applications were heard together and are being disposed of by this common order. The relevant facts necessary for the passing of this order are to the effect that applicants Syed Muhammad Hashim Raza, Syed Zakir Hussain and Sayed Kashif Hussain in company of the co‑accused are alleged to have committed the murders as well as burnt the vehicles for which different charge‑sheets have been filed against them by respective police stations in the Court of Special Judge S.T.A. Karachi. These three bail applications pertain to those cases. In all the abovementioned cases the evidence against the applicants as well as the co‑accused is that after their arrest by the police, the applicants Muhammad Hashim and Zakir Hussain had made judicial confessions implicating themselves and the co‑accused. The said judicial confessions were recorded by a First Class Magistrate. In their confessional statements the applicants had confessed that they had committed the respective offences of which some cases were of murders and the others were of arson and attempt to commit murders. Applicants Syed Muhammad Hashim Raza and Syed Zakir Hussain in their confessional statements had stated that the co- accused were with them and had participated in the crimes with them. Thus, the confessions of the abovenamed two applicants were inculpatory, and relevant for consideration as far as the co‑accused, implicated in these confessions. Previously application for bail on behalf of applicants S. Muhammad Hashim, S. Zakir Hussain and S. Kashif Hussain (B.A. No. 1523 of 1996) was dismissed while co‑accused Muhammad Afsar and Muhammad Hussain were ordered to be released on bail, as the evidence against them was the inculpatory statement of all the three applicants abovenamed who had made confessions naming these two accused with them. The applicants have now repeated their request for bail but while arguing the case learned counsel for the applicants pressed only one ground for bail to them i.e. statutory delay in disposal of their case and thus, the third proviso to section 497(1), Cr.P.C. was invoked. In giving the facts of the case against the applicants it will be observed that in Crime No.102 of 1995 of Police Station Gulberg the allegations against the applicants are that on 19‑2‑1995 Muhammad Tayab shuttering contractor, alongwith his guest Muhammad Shafi deceased had gone to Masjid‑e‑Tauheed to offer Fajir Prayers. After the prayer they were listening to the "Dais". At about 6‑30 a.m. all of a sudden there was firing from outside the mosque and the persons inside 'the mosque attending to the '.Dais" tried to run for their lives. After the firing was over it was noticed that Muhammad Shafi was lying in a pool of blood, Ibrahim, Muhammad Younis and Muhammad Saleem were injured. Muhammad Shafi had succumbed to the injuries on reaching the hospital. In Crime No.89 of 1995, registered at the instance of one Muhammad Iqbal, it is stated that when at about 8.30 p.m. Namaz‑e‑Taravih was being offered in Masjid‑e‑Babul Islam, miscreants armed with deadly arms who came in a vehicle bearing no registration number, started firing on Namazis. As a result of this firing, Hassan Jamal, Shaheedullah, Imran, Ghulam Rasool, Abdul Rasheed and Mohidan had died. Aslam Akhtar, Muhammad Rafiq, Wasim Bari, Muhammad Asim and many others received bullets and were injured. In F.I.R. No. 110, which was recorded by A.S.I. Muhammad Sher of Police Station Gulberg, Karachi, the facts are that on that date at many places vehicles were being set on fire by armed miscreants and the police had managed to arrest one accused Altaf Hussain on site of one of the incidents. Applicants were arrested during the investigation when they were found, in suspicious conditions travelling in a stolen taxi cab. After interrogation the applicants pointed out the places of incidents to the police and confessed their guilt. They were produced before a First Class Magistate; who recorded their confessional statements admitting the incident as stated above. They were also put to identification test before the Magistrate, wherein the witnesses identified them. Charge‑sheet was produced against them, and the cases have proceeded, and substantial number of witnesses have been examined so far. The application was moved by, the applicants before the trial Court for grant of bail to them on the ground of statutory delay as they were arrested on;16‑3‑1995. It was observed by tire trial Court that applicant Zakir Hussain was involved in 8 cases, out of which 7 were murder cases and majority of which was pending before S.T.A: Court. Applicant Hashim was found involved in 8 cases out of which 6 were on the charge of murder. Kashif was also found to be involved in 6 cases, 4 of them on the charge of murder. The trial Court came to the conclusion that the applicants were involved in the acts of terrorism and therefore, their, request for bail was hit by fourth proviso to section 497(1), Cr.P.C. and hence their request for bail was turned down. Their request for bail has been repeated before this Court on the same ground and the contentions of the learned counsel for the applicants mainly is that merely because the applicants are involved in number of cases, they could not be said to be desperate, dangerous and hardened criminals and therefore, it was insisted that the case of the applicants will not be covered by fourth proviso to section 497(1), Cr. P. C. We have considered the arguments of learned counsel and also gone through the record of the case. No doubt the applicants have remained in jail 'for a period beyond two years and thereby their case is attracted by third proviso to section 497(1), Cr.P.C. but the statutory right granted to the applicants by third proviso is controlled by fourth proviso and it has been held that it is a sort of an exception. The authoritative pronouncements on the right to be released on bail on the ground of statutory delay suggest clearly that wherever the case is covered by fourth proviso, the applicant is deprived of the right of bail on the statutory delay. One of the cases which has discussed such cases in detail is the case of Monder and others v. The State reported in PLD 1990 SC 934, In the case of Muhammad Hanif v. The State (PLD 1986 Kar. 437), it was observed that the Court has to base its opinion on the question whether the accused is a desperate, dangerous and hardened criminal upon the material available in the case under trial and also on any other material which may be produced by the prosecution to help the Court in formation of such an opinion. In the present case, the prosecution story itself, prima facie, suggests that the acts committed by the applicants are the acts of terrorism. The acts of terrorism are necessarily committed by those who can conveniently be called dangerous persons. We, therefore, find that the provisions of fourth proviso to section 497(1), Cr.P.C. are attracted and the trial Court has rightly held so while refusing to grant bail to the applicants on the ground of statutory delay. We find no reason to take an exception with the order of the trial Court. Consequently, we dismiss these applications H.B.T.lM‑94/K Bail application dismissed.