2010 P Cr (PLP)

MUNIB AKHTAR, J.

When this bail application first came up for hearing on 17-11-2009, the learned D.P.-G. took a preliminary objection on its maintainability. The learned counsel stated that section 21-D of the Anti-Terrorism Act, 1997 ("the Act"), under which the present bail application was filed, has been substituted by means of the Anti-Terrorism (Amendment) Ordinance, 2009 with effect from 1-10-2009 such that the power of all Courts, including the High Court, to grant bail in cases triable under the Act which involved offences punishable, inter alia, with death, had been removed. Since in the present case the offence for which the present bail applicant stood accused of was that of abduction under section 365-A, P.P.C. which was punishable with death and was triable exclusively under the Anti-Terrorism Act, 1997, the aforesaid change in the law deprived this Court of the power to entertain and hear the instant bail application. We had directed learned counsel for the parties to assist us on the preliminary objection. However, when the matter was taken up on 19-11-2009, the learned D.P.-G. withdrew this objection on the basis of his further research into the matter. He referred us to Qaim Khan and others v. The State 2002 MLD 715 and Asif Ali Zardari v. The State 1993 PCr.LJ

781. Both of these cases were concerned with certain amendments made to section 497, Cr.P.C. in terms of which certain provisions entitling an accused in custody to bail were omitted. It was held that the change in law with regard to bail matters was prospective and not retrospective in nature, since the right to bail was a substanti a right and such a vested right could not be taken away retrospectively. The learned D.P.-G. accepted and in our view rightly so, that this principle was fully attracted to the present case where the bail application under consideration was pending on the day that section 21-D of the Act was substituted in the manner as aforesaid. The change in the law being prospective could not affect pending bail applications, and hence the preliminary objection was withdrawn by the learned D.P.-G. We now turn to consider the bail application on merits. The present applicant stands accused in crime No.32/1999 which was reported to Police Station Kot Diji District Khairpur on 17-5-20G^ at 1700 hours. According to the complainant, one Abid Hussain (who is resident of District Rahimyar Khan), on 31-1-2009, he and his manager, one Faiz Ahmed, were travelling in the complainant's car from Nawabshah to Banglo Town. At about 2030 hours at night, when they were passing by an abandoned place, they saw in the light of the car's beams 6 armed men standing by the road, all of whom were identified by the complainant and one of them is the present bail applicant. The complainant stated that they were stopped by the aforesaid 6 men who got them out of the car and robbed them of the property as stated in the F.I.R. Thereafter, the complainant and his manager were taken on foot and forced to walk for about 4 to 5 hours in the jungle, until they finally reached a place where they were tied to a tree. The complainant was forced to make contact with his relatives so the ransom could be paid for their release. The complainant stated that contact was made with his brother Fahim Ahmed and finally, on 22-2-2009 at around sunset, the latter, and another relative Shah Bux Qalandar, came with the ransom amount of 12,35000 which was handed over to three of the accused. According to the complainant, the other accused also came there and were identified Liaqat Rid and one Asghar Rajput. The complainant and his manager was then released and departed from the jungle and reached their village where they were visited by their relatives and friends. It was only thereafter that the F.I.R. was lodged on the date and place mentioned above. We have heard the learned counsel for the applicant Mr. Mukesh Kumar G. Karara and the learned D.P.-G. for the State, Mr. Zulfiqar Ali Jatoi. Learned counsel for the applicant submitted that the F.I.R. had been registered after a period of 25 days from the date of the complainant's release and no plausible reason had been presented for his extraordinary and inordinate delay. Learned counsel submitted that in fact the F.T.R., at least insofar as it sought to implicate the present bail applicant, was false and mala fide and stood completely vitiated by the delay. Learned counsel further submitted that the present applicant had moved the Special Judge ATC Khairpur for bail, but his application had been dismissed by means of an order dated 2-7-2009. In fact on the date, the learned Court had also dismissed the present applicant's bail application in respect of another matter under section 13-D of the Arms Ordinance, 1969. The offence under the latter provision had allegedly been committed by the applicant by reason of his having been found on 21-5-2009 carrying an unlicensed .12 bore gun, and the learned trial Court concluded that that was the same gun as allegedly used by the present applicant during the commission of the offence under crime No.32 of 2009, i.e. the abduction for ransom of Abid Hussain and Faiz Ahmed. The trial Court had rejected the applicant's bail in Crime 32/2009 (i.e. relating to the present case) on the ground the weapon used in the crime had been recovered from the possession of the applicant. Learned counsel for the present applicant stated that the arrest shown on 21-5-2009 was in fact totally fictitious since on the day (and indeed, since 14-5-2009) the applicant had already been in police custody in certain other cases. Learned counsel further submitted that in fact on 14-2-2009 another F.I.R. had been registered by the police itself in respect of the abduction of Abid Hussain and Fiaz Ahmed in which there was no mention at all of the present applicant. The said F.I.R. was subsequently cancelled and this father showed that the present applicant had nothing to do with the abduction. Finally, learned counsel submitted that the narrative as stated in the F.I.R. also prima facie did not inspire confidence. The complainant, on his own showing, was a resident of Punjab and had been abducted in Deh Kot Diji in District Khairpur Sindh. Despite this, he had purported to identify all of the persons who had stopped his car and abducted him and his manager, and that too at night in the light of the car's beams. He accordingly prayed for grant of the bail to the applicant. The learned D.P.-G. opposed the grant of the bail. He submitted that the delay in the registration of the F.I.R. was not such as was fatal to the case. The applicant had been specifically identified by name in the F.I.R, and the offence of which he and the other stood accused of was a heinous offence triable under a special law, i.e. the Anti-Terrorism Act, 1997. Such crimes were crimes of a very serious nature and threatening to society, and put at risk the peace of the community. He submitted that the applicant's bail application had been rightly rejected by the learned trial Court and prayed that this Court also reject the present application. In support of his submissions, he relied on Shoib Khan v. The State 2002 PCr.LJ 957 and Afzal Khan v. The State 2002 PCr.LJ

154. We have examined the case in the light of the arguments of the learned counsel, and have perused the record of the case and the judgments relied upon by the learned counsel. In our view, no plausible or valid reason has at all been given for the delay in registering the F.I.R. in the present case. Although delay in and of itself may not usually be regarded-al-decisive, in our view, the long period involved in the present case (i.e. almost one month) is clearly extraordinary and inordinate, and must (at least for present purposes) weigh heavily against the complainant in the absence of any plausible and reasonable explanation. The learned D.P.-G. on this point relied on Shoib Khan v. The State 2002 PCr.LJ 957, but in that case the report of the abduction was made within one day, and the F.I.R. was formally registered within 3 days. Similarly in the second case relied upon by him, namely Afzal Khan v. The State 2002 PCr..LJ 154, the abductee made a statement under section 164, Cr.P.C. immediately upon his release. These two cases are therefore, clearly distinguishable since the time period involved between the incident/release, and information to the police, is very short and easily explainable in the facts and circumstances of those cases. In the present case, the reason put forward in the F.I.R, namely that the complainant/abductee was being visited by his friends and relatives after his release and therefore, did not report the matter to the police for about 25 days is clearly implausible. Furthermore, in this case there was after all another abductee, namely Faiz Ahmed. Even if the complainant was pre-occupied in the manner as stated (and even this claim appears prima facie to be doubtful), the other abductee could surely have gone to make the report to the police immediately on the release of the two men. As noted above, the primary point on which the trial Court refused bail to the present applicant was that the weapon (the .12 bore gun) that was recovered from the possession of the applicant on 21-5-2009 was allegedly the same weapon that was with the applicant, and was used by him, during the abduction of Abid Hussain and Faiz Ahmed. However, at this stage there is nothing on the record to-establish or substantiate this, and it is not at all clear how the trial Court has come to this conclusion. It is to be noted that the F.I.R. does not state that any weapon was fired or discharged during the alleged abduction, and of course no question arises of any empties having been recovered in the present situation. Therefore, even if we disregard the submissions made by learned counsel for the applicant, namely that on the relevant day (21-5-2009 he was in fact was already in custody, the connection made and conclusion drawn by the trial Court regarding the gun are not convincing. This could not be a relevant ground for refusing bail. As regards the narrative of the incident as given in the F.I.R., we are of the view that it is prima facie unsatisfactory. It is difficult to understand how, if the complainant was simply being abducted for ransom by a group of persons, he could have identified them and that too at a remote place which he was simply passing by on his journey at nighttime. Furthermore, the purported identification was made in the light of the car's beams. In fact, the learned counsel for the applicant had submitted that the present applicant had been maliciously named in the F.I.R. since he had a long standing and ongoing enmity with the complainant's relative mentioned in the F.I.R. namely Shah Bux Qalandar and it was only on his instigation that the applicant had been named in the F.I.R. Learned D.P.-G. had strongly contested this assertion on the basis that no credible material has been placed on the record to substantiate the same. In our view, it is not necessary to consider the merits of this submission since we are satisfied that, as explained above, the narrative given in the F.I.R. as regard the identification and involvement of the present bail applicant does not prima facie inspire any confidence. It is clearly a matter which can only be resolved through a further inquiry and determination of the facts at the trial stage. For present purposes, the authenticity of the allegations against the present bail applicant do not, prima facie, inspire confidence. For the foregoing reasons, we are of the considered opinion that in the present case, a clear case of further inquiry had been made out and that therefore, the applicant is entitled to the grant of the bail. We had therefore granted bail to the applicant by means of a short order on 19-11-2009 delivered in Court after hearing the learned counsel, and above are the reasons for our having done so. We may, however, clarify that our observations are of a tentative nature and the trial Court is not to consider them as binding observations while conducting the trial. The applicant is directed to co-operate with the trial Court and the investigating agency and attend the trial and comply with their directions, failing which this concession may be withdrawn. This bail application is disposed of in the above manner. H.B.T./L-1/K Bail granted.