1999 PLP 2293 (MLD)

4. Agha Zafir Ali, learned counsel for the applicant/accused has contended that name of the applicant/accused does not transpire in the F.I.R., that mo culprits are shown in the F.I.R. whereas police has sent up for persons; that the: informant/complainant has not identified the applicant/accused in his evidence before the trial Court and has exonerated him; that offence at the best would fall under section 411, P.P.C. for which maximum punishment provided under lark. is three (3) years and fine; .that the applicant/accused is in custody sin. 8-8-1996, therefore, on the ground of statutory delay he is also entitled to bail.

5. Mr. Muhammad Ismail Memon, learned counsel for the Stag contended that there are in all five-prosecution witnesses in the case. On complainant has been examined and yet four witnesses remain to be examined; that on 8-7-1996 snatched vehicle was recovered from the possession of applicant/accused and his four companions; that at T.T. Pistol was also recovered from his possession. He further contended that on merit no case for the grant of bail has been made out but on the ground of statutory delay applicant/accused is entitled to bail. While, Mr, Muhammad Ismail Memon, learned A.A.-G., was at the verge of completion of his arguments when Mr. Habib Ahmed, Assistant Advocate-General reached and argued the case. He stressed that under proviso (3) to section 497(1), Cr.P.C. bail is right of applicant/accused, therefore, he may be granted bail.

6. I have considered the arguments of Agha Zafir Ali, learned counsel for the applicant/accused, Mr. Muhammad Ismail Memon, learned counsel for the State and Mr. Habib Ahmed, learned A.A.-G. and I have also perused the material placed on record and Police record with the assistance of learned counsel for the parties.

7. The Criminal Bail Application No.294 of 1997 in respect of co-accused Shamsuddin was filed before this Court and it was dismissed by my learned brother Dr. Ghous Muhammad, J. on 5-3-1997. The present application for bail was also placed before him on 4-6-1998, when he ordered 'not before me'. Consequently, this application was placed before me.

8. The record shows that within fourteen (14) hours of the snatching of the vehicle an encounter took place wherein applicant/accused was arrested with T.T. Pistol alongwith his companions and snatched vehicle was recovered from his possession.

9. The contention that informant/complainant has exonerated the applicant/accused in his evidence before the trial Court, therefore, he is entitled to bail has no substance as four (4) prosecution witnesses are yet to be examined.

10. The plea that offence squarely falls under section 411, P.P.C. is also not tenable because it is not a case of knowingly retaining the stolen property simpliciter but in the case in hand snatched vehicle was secured from the possession of applicant/accused within fourteen (14) hours of the incident. The possession was recent. Prima Facie inference would be that vehicle was snatched by the applicant/accused alongwith his co-associate and he can be tried under section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979.

11. The contention that the name of applicant/accused does not transpire in the F.I.R. and only two persons were shown in the F.I.R. as culprits whereas five accused have been sent up, therefore, applicant/accused is entitled to bail has also no force. Admittedly, accused were not previously known to complainant. The vehicle was snatched by two persons but in encounter when it was recovered applicant/accused alongwith other four persons was sitting therein, therefore, five (5) persons were sent-up.

12. The ground of statutory delay is also not available to applicant/accused looking towards the peculiar facts and circumstances of the case.

13. For extending the benefit of proviso (3) to section 497(1), Cr.P.C.I Court has to glance over the act of the accused as proviso (4) to section 497(1), Cr.P.C. is introduced and intended for that purpose and Courts normally cannot 8 lose sight of this aspect. Proviso (3) to section 497(1) Cr.P.C. is controlled by proviso (4) to section 497, Cr.P.C. In Karachi, now a days vehicle snatching has become order of the day, and such an act amounts to terrorism. In this context, I am fortified by the unreported well-reasoned decision of this Court, delivered by my learned brother Dr. Ghous Muhammad, J., in the case of Muhammad Shafique v.The State (Criminal Bail Application No. 1451 of 1997). The relevant observations are reproduced hereinbelow for convenience sake: -- "A scrutiny of the above definitions would reveal that acts of terrorism cover actions which cause or are calculated to cause alarm, fright, dread, panic, horror, fearfulness etc. Car snatching at gun point is covered by such definition of terrorism We are all witnesses to a decay and decline in the law and order situation coupled with a hike in car snatching through show of force by individuals or mobs. The crime of car snatching and certain others have become a menace to the society and we are all hostages to such criminals. Though, such crimes are directed against individuals who are the victims but in a wide context they affect the society at large. Carsnatching is, thus, a crime against the society in view whereof the Court has to be cautious in granting bail as mandated by the Supreme Court in Imtiaz Ahmed v. The State PLD 1997 SC

545. In my humble opinion the applicant in the present case was caught red? handed after a police car chase. He is involved in a crime pertaining to car snatching which is an act of terrorism affecting the society at large. Thus, pressing into service the dictum of the Supreme Court in Jaggat Ram I decline to grant him bail. The present application is, thus, dismissed ????? "

14. The authorities Nadeem Ahmed v.The State (1992 PCr.LJ 575), Shaukat Ali v. Ghulam Abbas and others (1998 SCMR 228), Rahim alias Rahmak and another v. The State (1998 PCr.W. 821), Muhammad Riaz v.The State (1998 PCr.LJ 320), Nasrullah and another v. The State (1998 PCr.LJ. 76), Muhammad Afzal v.The State (1998 PCr.LJ 955), Farman Ali v.The State (1997 SCMR 971) and Muhammad Rafique v. The State (1997 SCMR 412), cited at bar by the learned counsel for applicant/accused are of no avail and help to him as the facts and circumstances of the cited cases are altogether different and distinguishable from the facts and circumstances of the present case.

15. It is well settled that while considering the bail plea on the ground of statutory delay Court has to take into consideration the evidence collected by the t. prosecution, and if case falls within the purview of proviso (4) to section 497(1), Cr.P.C. Court must refuse the bail.

16. For all the reasons stated hereinabove, I do not agree with the learned counsel for the applicant/accused as well as with both the learned State Counsel and I see no merit in the bail application, which is accordingly dismissed.

17. The observations made herein above are of tentative nature and the trial Court will not be influenced thereby in any way at the time of final decision of the case and will be free to conclude and arrive at its own findings after evidence is recorded in the case. Q.M.H./R-63/K?????????????????????????????????????????????????????????????????????? Petition dismissed.