2004 PLP 1418 (MLD)

AMANULLAH ABBASI, J.‑‑‑The F.I.R. in this case was registered on 15‑10‑1993 for offences under sections 302 & 324 Qisas and Diyat Ordinance, 147, 148, 149, 114, 429, P.P.C. 427, read with section 17(3) Hudood Ordinance. The applicant had moved bail application before the trial Court which was rejected by the Special Court No. 1, Suppression of Terrorist Activities Hyderabad. The relevant portion of the order is as under:‑‑ "According to the prosecution case, it is admitted position that applicants/accused were convicted by then STA Court No. 1 Hyderabad vide judgment dated 20th 'March, 1996 as they were found guilty of committing 3 murders and also found guilty of committing robbery of licensed gun and bullets of Jamal But the above conviction was set aside and now the case directed to be tried afresh alongwith co‑accused Muhammad son of Habib alias Tayab Khoso. Admittedly applicants/accused are in custody since last 5 years and trial against accused had already concluded by judgment dated 20th March 1996 but at present fresh trial is ordered against applicants/accused. The allegations against applicants/accused as per F.I.R. and evidence on record adduced by prosecution at the time of trial shows that they being armed with sophisticated weapons viz. KKs, and guns and hatchets etc., being members of unlawful assembly and in prosecution of the common object they committed three murders and also due to indiscriminate firing 2 goats and one calf died and one buffalo was injured, and they also took with them licensed gun of P.W. Jamal with 24 live catridges. Therefore, this clearly show that the applicants/accused are hardened criminals and desperate, though they are in custody since last 5 years. But accordingly to my, view their case falls under IVth Proviso to section 497, Cr.P.C., therefore, they are not entitled to bail. Reliance is placed on 1998 PCr.LJ 1470, 1997 PCr.LJ 1729 and 1996 PCr. LJ

748. Hence for the above reasons this bail application has no merits, the same is therefore, dismissed." The learned advocate for the applicant has requested for bail on the ground that the complainant party had enmity with the applicants and therefore, they have been falsely involved. The co‑accused Ismail Ali Abid, Sai Dad and Mir Muhammad have been acquitted and therefore, the evidence of eye‑witnesses has been falsified. The applicants are in custody since 5‑11‑1993 that the judgment of the trial was set aside and the applicants will have to, face fresh trial and it will take considerable time to commence and conclude the trial. The applicant are not dangerous, desperate or hardened criminals. The jail report and police report do not reveal that the applicants are dangerous, hardened or desperate criminals. Reliance has been placed on decision reported in 1993 SCMR 525 (para 7), 1986 PCr.LJ 2947, 1992 PCr.LJ 2325 and PLD 1995 SC

49. The learned State Counsel opposes the grant of bail on the ground that the applicant case is covered by IVth Proviso to section

497. They are alleged to be armed with dangerous weapons at the time of incident and 3 murders were committed. In this case three murders are alleged to have been committed. They were convicted by the trial Court and they filed Appeal No.24 of 1996 (130 of 1996). While deciding the said appeals appellant Muhammad Khan was allowed to remain on bail. The only point before this Court is as to whether the case of appellant is covered by IVth Proviso to section

497. The fact remains that the appellants are in custody since 5‑11‑1993. They have remained in custody for more than 5 years but their case has not concluded as fresh trial has been ordered. In judgment dated 20‑3‑1996 the trial Court had mentioned as under:‑ "Accused Muhammad Khan Hassan, Gul Hassan and Ali Akbar are sent to jail to serve their sentence while I extend benefit of doubt to accused Ismail, Ali Abid, Sai Dad and Mir Muhammad who have not caused injuries to any of the deceased persons and no specific role has been attributed to them except general firing. The accused are on bail, their bail bond and surety discharged. Case against absconding accused namely Imam Ali, Ali Burnani, Dilo alias Deputy, Soomar Khoso and Dhol Khoso is already put on dormant file. The same will proceed as and when any of accused is arrested". The order reveals that there are absconding accused also and some accused have already been acquitted by trial Court. Excepting the present incident no other crime is mentioned wherein the appellants had participated. Excepting the present case there is no other case against the appellants. The question whether their case is covered by IV Proviso requires further inquiry. The benefit of such a situation can be given to appellants as they have already remained in jail for more than 5 years and the case against them is to commence again. We, therefore, grant them bail subject to furnishing of surety in the sum of Rs.200,000 by each and PR Bond in the like amount to the satisfaction of the trial Court. H.B.T./H‑12/K Bail granted.