ORDER
SHEET
IN
THE HIGH COURT OF SINDH BENCH AT SUKKUR.
Cr.B. A.
No: 666
of 2009.
1. For orders on office objection.
2. For orders on MA 2203-09.
` 3.
For orders on MA 2204-09.
4.
For katcha peshi.
Presents:
Mr. Justice Muhammad Ather Saeed &
Mr. Justice Munib Akhtar.
*******
For
the Applicant: Mr.
Mukesh Kumar G. Karara.
For
the Complainant: Mr.
Waheed Ali Samtio.
For
the State: Mr.
Zulfiqar Ali Jatoi, DPG.
Date
of hearing: 19.11.2009
O
R D E R .
Munib Akhtar, J.: When this bail
application first came up for hearing on 17.11.2009, the learned DPG 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, had been substituted by means of the Anti
Terrorism (Amendment) Ordinance, 2009 with effect from 01.10.2009 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 PPC, 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 DPG
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 P.Cr.LJ 781. Both of these cases were concerned with
certain amendments made to section 497 CrPC 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 substantive right and
such a vested right could not be taken away retrospectively. The learned DPG
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 DPG.
We now turn to consider the bail
application on merits. The present applicant stands accused in crime No.
32/1999 which was reported to PS Kot Diji District Khairpur on 17.5.2009 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
traveling in the complainant’s car from Nawabshah to
We have heard the
learned counsel for the applicant Mr. Mukesh Kumar G. Karara and the learned
DPG for the State, Mr. Zulfiqar Ali Jatoi.
Learned counsel for the applicant
submitted that the FIR 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
this extraordinary and inordinate delay. Learned counsel submitted that in fact
the FIR, at least insofar as it sought to implicate the present bail applicant,
was false and malafide 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 that 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
21.05.2009 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. 32/2009, 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 that 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 FIR had been
registered by the police itself in respect of the abduction of Abid Hussain and
Faiz Ahmed in which there was no mention
at all of the present applicant. The said FIR was subsequently cancelled
and this further showed that the present applicant had nothing to do with the
abduction. Finally, learned counsel submitted that the narrative as stated in
the FIR also prima-facie did not inspire confidence. The complainant, on his
own showing, was a resident of
The learned DPG opposed the grant
of the bail. He submitted that the delay in the registration of the FIR was not
such as was fatal to the case. The applicant had been been specifically identified by name in the
FIR, and the offence of which he and the others 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
P.Cr.LJ 957 and Afzal Khan v The State 2002 P.C.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 FIR in the
present case. Although delay in and of itself may not usually be regarded as
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 complaint in the absence of any
plausible and reasonable explanation. The learned DPG on this point relied on Shoib Khan v The State 2002 P.Cr.LJ 957, but in that case the report of the
abduction was made within one day, and the FIR was formally registered within 3
days. Similarly in the second case relied upon by him, namely Afzal Khan v The State 2002 P.C.LJ 154, the abductee made a statement under
section 164 CrPC 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 FIR, 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 FIR 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 FIR, 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 FIR
since he had a long standing and on
going enmity with the complainant’s relative mentioned in the FIR namely Shah Bux Qalandar and it was only on
his instigation that the applicant had been named in the FIR. Learned DPG 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 FIR as regards 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 off in the above
manner.
JUDGE
JUDGE