LUQMAN HUSSIAN Versus THE STATE

ORDER

1. These applications under section 498, Cr.P.C. has been presented on behalf of Luqman Hussain and 22 others who having been arrested on 21‑9‑1987 are facing trial for offences under section 3 (a) (A) of F.D. 1951 r/w Section 14 of the F.A., 1946.

2. The applicants are admittedly Bengali speaking. An application for bail was presented on their behalf before the learned Trial Magistrate, who dismissed the same. The applicants thereupon presented an application for bail before the learned Sessions Judge (West) Karachi. It was contended on their behalf that they are Pakistani Citizens hence their apprehension and arrest is illegal. Despite no objection of the learned DPP, the learned Sessions Judge also declined to enlarge them on bail with the following remarks:

3. "The situation In Karachi is not normal, lakhs of foreigners have crossed over to Pakistan from neighbouring countries and have flooded Karachi. They have created a lot of law and order problem including murder, arson, looting and bomb blasts Entire Karachi is shaken down, by their nefarious activities. By no stretch of imagination can it be said that exceptional circumstances disentitle applicants to bail do not exist."

4. The offence with which the applicants are charged is punishable with imprisonment for a term which may extend to five years and also a fine. The applicants were thus as a matter of course entitled to be granted bail, but the learned Courts below have declined to do so for the reasons recorded above.

5. Mr. K.M. Nadim, learned counsel for the applicants, reiterated the same contentions before me which were made before the Courts below, namely, the applicants are by birth Pakistanis and the mere fact that they originally belonged to former East Pakistan could not be construed as their being Foreign Nationals. He also drew my attention to a decision of the Hon'ble Supreme Court in the case of Haji Wall Muhammad v. The State (1969 SCMR 233). In that case the appellants were being prosecuted for offences under sections 167 (8) (a), 81 and section 162 of the Sea Customs Act. The Supreme Court held as under:

6. "........as a general rule on a charge of this kind made in this case not involving a sentence of death or transportation for life, bail should ordinarily be allowed disregarding the grounds of the seriousness or anti‑social nature of the offence unless there be strong grounds, in the shape of evidence for the belief that he is guilty.

7. " The learned State Counsel Mr. Zahiruddin supports the impugned order for the same reasons as are recorded therein.

8. I am afraid I cannot persuade myself to agree with the learned State counsel. The learned Courts have, without any material on record of this case, allowed their mind to be influenced by extraneous circumstances. If there is some material available with the prosecution agency to connect the applicants with the commission of any of the offences referred to by the learned District Judge in his impugned order then they could have been properly and effectively dealt with under the relevant provisions of law. The Courts below have thus failed to exercise their discretion judiciously. Moreover, in the presence of the case as set up by the applicants, it would be a case of further enquiry as to whether they have actually committed the offence with which they are charged.

9. I would, therefore, allow the application and admit the applicants to bail on their furnishing a surety in the sum of Rs.10,000 each with P.R. bond in the like amount to the satisfaction of the trial Court.

10. M. B. A. /L‑10/ K ??????????????????????????????????????????????????????? Bail allowed.