1998 P Cr (PLP)

Gulzar son of Malkoo and Muhammad Aslam son of Nawaz are among the nominated accused in case F.I.R. No. 134 registered at Police Station Lalian on 16-6-1992 at 12-20 p.m. vide Rapat No.9 under section 302/382/109/148/ 149, P.P.C.

2. This F.I.R. was lodged by one Muhammad Nawaz son of Sultan who claimed therein that on 15-6-1992 at morning time (Fajrwela) he alongwith his brother Bashir Ahmad, Muhammad Yar son of Sher Muhammad and Saifullah son of Khushi Muhammad had gone to the Dera of Muhammad Ali Shah in village Bhangar Shah Behlol for the settlement of some dispute and Nian. After they got free from there they were coming home on mares. The complainant and Saifullah were on the back of one mare while Bashir Ahmad and Muhammad Yar were riding on the other mare. When they reached near the Dhari of Nawaz Dilawari Glotar at about Zohar Wela there emerged Gulzar son of Malkoo armed with wooden Moongli and his companions Abbas son of Mathela, Muhammad Aslam son of Nawaz and Muhammad Iqbal son of Muhammad all armed with Sotas from a sugarcane field and came in front of the complainant party. Muhammad Ramzan caught hold of the reins (Lagam) of the mare on which Muhammad Yar was sitting in front and snatched from him his licensed rifle with 101 live cartridges. He also gave him a blow with the Butt of the rifle hitting him at his left ankle. Muhammad Ramzan fired in the air and exhorted his companions not to spare Bashir Ahmad. He also exclaimed that whosoever came near, would not be spared. Gulzar accused then gave a Moongli blow to Bashir Ahmad, who had since alighted from the mare, hitting in his head. He fell down whereafter he was given Sota blows one after the other by Abbas son of Mathela and Muhammad Aslam son of Nawaz, hitting him on various parts of the body (described in the F.I.R.). The complainant claims further that Muhammad Ramzan firing in the air and they did not go near him out of the sheer fear. The accused then succeeded in fleeing away after leaving Bashir Ahmad and Muhammad Yar in injured condition and while leaving they also took with them the licensed rifle belonging to Muhammad Yar.

3. Muhammad Aslam accused moved an application for post arrest bail, which was dismissed by the learned Additional Sessions Judge, Chiniot on 10-12-1996. Similarly, the bail application moved by Gulzar was also dismissed by the same learned Additional Sessions Judge on 5-1-1997.

4. Both of them jointly moved the present application for their bail claiming inter alia that there was inordinate unexplained delay in lodging the F.I.R.; that the allegations in the F.I.R. were partially found to be incorrect during the investigation in that Abbas and Muhammad Ramzan were found innocent, alongwith certain other persons who were subsequently joined as abetters of the offence, while two other persons namely Ghazanfar and Noora were nominated to have inflicted injuries to the deceased; that the injuries attributed to Muhammad Aslam accused-petitioner were not on vital parts and that Muhammad Aslam had no direct move to participate in the commission of the offence.

5. On 30-4-1997 after making certain submissions, Mian Sikandar Hayat, Advocate, counsel for the petitioners sought not to press the bail matter so far it related to Muhammad Adam petitioner No.2. The same was, therefore, dismissed as withdrawn.

6. It, however, transpired on 27-5-1997 that Gulzar accused, whose bail matter has to be considered, was involved in as many as 29 criminal cases, the list of which is available on record. The learned counsel for the petitioner, however, contended that the number of cases could not help the prosecution in claiming that the petitioner was a previously convicted offender or that he was a hardened, desperate dangerous criminal. He claimed further that for being a previously convicted offender the provisions of fourth proviso to section 497(1), Cr.P.C. had to be taken into consideration according to which the accused must have been convicted for an offence punishable with death or imprisonment for life and that the petitioner Gulzar was not covered under these provisions. A careful consideration of the criminal history/antecedents of Gulzar alias Gulzari accused-petitioner supports the contention of the learned counsel for the petitioner and he cannot be termed as a previously convicted offender. But it appears from the record that he did abscond from police custody on 5-8-1994 and was re-arrested .on 7-11-1994. The learned Additional Sessions Judge, therefore, came to the conclusion that he was a dangerous criminal. He also observed that two of the co-accused of the petitioner were still absconders. Keeping in view the circumstances he refused bail to the petitioner..

7. The learned counsel for the petitioner has again asserted before me that the petitioner cannot be termed as a dangerous criminal because the offence with which he was charged on account of his slipping away from the police custody was covered under section 224, P.P.C. which was bailable and the petitioner was in fact allowed bail therein on 23-4-1997 on his submitting bail bonds in the sum of Rs.5,000 with one surety in the like amount. According to him the petitioner has been behind the bars ever since his re-arrest on 7-11-1994 and the conclusion of the trial is not yet in sight and, as such, he is entitled to the concession of bail as of right under the third proviso to subsection (1) of section 497, Cr.P.C. having remained detained for a continuous period exceeding two years. He has sought support from what has been laid down in Iftikhar Ahmad v. The State 1983 PCr.LJ 1512 (Karachi), Nazar Muhammad and 2 others v. The State 1987 PCr.LJ 1754 and Abdul Majeed v. The State (1996 PCr.LJ 298 (Karachi). He has laid great stress on the fact that the contention of the learned counsel for the State in 1983 PCr.LJ 1512 (Karachi) that the petitioner in the said case was a proclaimed offender or was required in other criminal cases -was not taken into consideration by the Court and the accused was allowed bail because the speedy trial was a well-recognized right of an accused person and if there was a delay, specially a statutory delay, then the accused irrespective of the fact whether he was absconder or was required in other cases, would be justified in asking for bail.

8. The learned State Counsel has, however, controverted his assertions in this behalf and has urged that this right of the accused is subject to not being a previous convict or a desperate, hardened or dangerous criminal and that a careful consideration of the list of criminal cases in which Gulzar petitioner has remained involved shows that he mainly lives on committing thefts or on dishonestly receiving the stolen properties and that is why most of the cases pending against him are under section 379 and section 411, P.P.C. read with section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. He has placed reliance on what has been laid down in Nigah Hussain Shah and another v. The State 1990 ALD 706(1), Sajjad alias Jaida and another v. The State. 1991 MLD 1877 and Zahid Hussain Shah v. The State PLD 1995 SC 49.

9. After considering all the relevant facts including the fact that the accused appears to be a habitual offender I am of the convinced opinion that if released on bail he would become fugitive from law as he already made an attempt in this behalf. He has a long criminal history and obviously lives on what he earns through committing theft or receiving stolen properties. He has therefore, no good case for bail. The bail petition is accordingly dismissed.

10. The learned trial Judge shall, however, make genuine efforts to expedite the conclusion of the trial. H.B.T./G-61/L???????????????????????????????????????????????????????????????????????????????????? Petition dismissed.