2015 P Cr. L J 808
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Ghulam Mustafa Mengal, JJ
ABDUL SALAM ---Applicant
versus
The STATE ---Respondent
Criminal Bail Application No.58 of 2014, decided on 24th July, 2014.
Criminal Procedure Code (V of 1898) ---
----S. 497(1), provisos third & fourth ---Penal Code (XLV of 1860), Ss.302, 365 & 34 ---Anti-
Terrorism Act (XXVII of 1997), S. 21 -D(2) ---Qatl-i-amd, kidnapping or abducting with intent
secretly and wrongfully to confine person , common intention ---Bail, refusal of ---Accused along
with co -accused were nominated in promptly lodged FIR ---FIR was lodged prior to recovery of
dead body which was recovered cuffed in shackles of iron loops ---Information provided in the
FIR, and the stat ements of witnesses, were corroborated with subsequent circumstances of the
case---Act of accused and co -accused, amounted to terrorism, which included actions causing
alarm, fright, panic, horror, fearfulness etc. ---Accused persons, would not be entitled to earn the
concession of bail on basis of statutory delay being offenders of the case of terrorism ---Bail
application of accused, was dismissed, in circumstances.
Sudheer v. The State 2009 YLR 296; Muhammad Iqbal alias Bali v. The State 2008 YLR
864; Mujahid alias Billa v. The State 2008 YLR 1449; Abdul Wahid Junejo v. The State 1997
PCr.LJ 1808; Muhammad Saqib v. The State 2007 YLR 694; Gul Hassan Shah v. The State 1990
MLD 1542; Riasat Ali v. Ghulam Muhammad and another PLD 1968 SC 353; Muhammad
Aslam v. The State 2005 PCr.LJ 437 and Atto alias Muhammad v. The State PLD 2008 Kar. 177
distinguished.
Imtiaz Ahmed v. The State PLD 1997 SC 554; Rizwan Hussain v. The State 1999 SCMR
131; Muhammad Shafique v. The State 1998 PCr.LJ 1229 and Mst. Badrunnis a Jatoi and others
v. The State 2000 PCr.LJ 428 ref.
Manzoor Ahmed Rehmani for Applicant.
Abdul Sattar Durrani, Additional Prosecutor -General for the State.
Date of hearing: 15th July, 2014.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---The applicant Abdul Salam
seeks bail in case FIR No.2 of 2012 registered on 9 -3-2012, with Levies Thana Khattan, District
Kachhi, under sections 302, 365 read with section 34 of the Pakistan Penal Code, 1860
("P.P.C.").
The applicant moved an applicatio n for grant of bail before the learned Special Judge
Anti-Terrorism Court -I, Quetta, which was rejected vide order dated 2 -6-2014. Hence, this
application.
2. We have heard the learned counsel for the parties and have gone through the record.
The reco rd reflects that in the aforesaid FIR the complainant alleged that on stated date,
time and place his paternal cousin namely Khuda -e-Rahim, who used to ply private taxi and on
fateful day he was at Taxi Stand near Customs check post Quetta, when five perso ns approached
him and intended to hire his taxi/car for Dhadar. On his suspicion, the said persons introduced
themselves with name and parentage and then they started journey to the agreed destination i.e.
Dhadar. After a few hours it was conveyed on cell phone that said Khuda -e-Rahim has been
kidnapped and demanded Rs.20,000,00 for his release and in case of non -payment of ransom till
next day at 9 -00 a.m., they will kill him. On the next day at 10:00 am it was informed by the
assailants that on account of their failure to pay the ransom the abductee Khuda -e-Rahim has
been murdered and his dead body has been thrown in the mountainous area of Allah Yar Shah
Dam Khattan. Thus, the said FIR was lodged.
3. On 13 -3-2012 the applicant along with co -accused Raha m Ali were arrested from the said
area. On completion of formal investigation, the challan of the case was submitted before the
learned Judicial Magistrate, who under section 190, Cr.P.C. forwarded the challan to the learned
Sessions Judge, Sibi, whereby t he same was transmitted to the file of Additional Sessions Judge -
I, Sibi.
4. The complainant filed Criminal Transfer Application bearing No.(s) 02 of 2012 before
this court, on the strength that the offence committed by the applicant and other accused pe rsons
falls within the scheduled offence, therefore, is exclusively, triable by the Anti -Terrorism Court.
The application was accepted vide order dated 14 -12-2012 in consequence, whereof the case file
was transferred and presently the case is pending adjud ication before the Special Judge Anti -
Terrorism Court -I, Quetta.
5. The bail in the instant case was mainly sought on two folds; firstly, that there is no eye -
witness of the occurrence and the prosecution case rests upon the alleged disclosures of the
applicant and his co -accused, secondly, in pursuance of this court order and after transfer of the
case, so far, only one witness i.e. P.W.1/complainant was produced by the prosecution.
Thereafter, the case was being adjourned due to non appearance of the pr osecution witnesses.
Therefore, the bail has also been sought on statutory ground subject to sub -Clause (b) of third
proviso of section 497, Cr.P.C. The learned counsel further referred to the order sheets
maintained by the learned trial Court and contende d that delay in conclusion of trial was
occasioned due to failure of the prosecution to produce its evidence. He stated that the delay so
caused cannot be attributed to the applicant, therefore, keeping in view his continuous detention
since 13 -3-2012 he i s behind the bars, therefore, he is entitled to be admitted to bail on statutory
ground. He relied upon the following cases: --
Sudheer v. The State (2009 YLR 296)
Muhammad Iqbal alias Bali v. The State (2008 YLR 864)
Mujahid alias Billa v. The Sta te (2008 YLR 1449)
Abdul Wahid Junejo v. State (1997 PCr.LJ 1808)
Muhammad Saqib v. The State (2007 YLR 694)
Gul Hassan Shah v. The State (1990 MLD 1542)
Riasat Ali v. Ghulam Muhammad and another (PLD 1968 SC 353)
Muhammad Aslam v. The State (2005 PCr.LJ 437)
Atto alias Atta Muhammad v. The State (PLD 2008 Kar. 177)
6. Mr. Abdul Sattar Durrani strongly opposed the plea of bail and urged for dismissal of t he
application.
7. We have heard the learned counsel for respective parties and have gone through the
record and observed as follows: --
(a) The FIR in respect of the occurrence was promptly lodged.
(b) The applicant along with other accused are nomin ated with name and parentage.
(c) The FIR was lodged prior to recovery of dead body and the same was recovered cuffed in
shackles of iron loops from a place already mentioned in the FIR.
(d) The information provided in the FIR and the statements of wit nesses were corroborated
with subsequent circumstances of the case.
(e) In view of the above observations it would be instructive to reproduce the fourth proviso
of section 497, Cr.P.C., which provides as under:
"Provided further that the provision of the foregoing proviso shall not apply to a
previously convicted offender for an offence punishable with death or imprisonment for life or to
a person who, in the opinion of the court is a hardened, desperate or dangerous criminal or is
accused of an act o f terrorism punishable with death or imprisonment for life."
In proviso supra the legislature in their wisdom have intentionally excluded the offenders,
who are "hardened, desperate and dangerous criminals or are accused with an act of terrorism
punishable with death or imprisonment for life".
Admittedly the instant case is pending adjudication before the Special Judge Anti -Terrorism
Court -I, Quetta, thus the applicant/accused being an offender of an alleged act of terrorism is not
entitled to get the benefit of statutory provision of section 497, Cr.P.C.
8. In the judgments referred to by the learned counsel for the applicant, though the bail was
granted on statutory ground but without mentioning, whether the offenders in those cases were
accused of an act of terrorism or otherwise. However, the perusal of referred to judgments reveal
that in none of these judgments, the section 7 of the Anti -Terrorism Act, 1997 is mentioned.
Therefore the judgments relied upon by the learned counsel for the applicant would not be
helpful to assist the applicant's case.
9. The applicant along with co -accused, were nominated in the promptly lodged FIR and
they in furtherance of their common intention and in deceitful manner, hired the deceased's taxi
and thereafter murdered him in shocking and gruesome manner. The act of the applicant and co -
accused persons amounts to terrorism, which includes actions, which cause or/a calculated to
cause alarm, fright, dread, panic, horror, fearfulness etc. We are all witness to decay and decline
in the law and order situation, the crime of kidnapping for ransom, the vehicle snatching and
certain other offences have become menace to the society and we are all hostage to such
criminals. Though such crimes are directed t o the individuals who are victims but in wider
context they affect the society at large, thus, a crime against the society in lieu whereof the court
has to be cautious in granting bail as mandated by the Hon'ble Supreme Court of Pakistan in
Imtiaz Ahmed v. The State (PLD 1997 SC 554). Thus, in such view of the facts and in the
peculiar circumstances of the instant case, the applicant will not be entitled to earn the
concession of bail on basis of statutory delay being the offender of the act of terrorism. F or
rendering this view reference is made to the following precedents: --
Rizwan Hussain v. The State (1999 SCMR 131)
Muhammad Shafique v. The State (1998 PCr.LJ 1229)
Mst. Badrunnisa Jatoi and others v. The State (2000 PCr.LJ 428)
Needless to ad d here that the section 21 -D(2) of the Anti -Terrorism Act, 1997 stipulates
that:--
"All offences under this Act punishable with death or imprisonment exceeding three
years shall be non -bailable"
Thus, in view of above discussion we are not inclined t o admit the applicant to bail.
Resultantly the application being devoid of merit is dismissed.
However, the observations made herein above are meant for disposal of this application,
which shall have no bearings on merits of the case.
HBT/32/Bal. Bail refused.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.