TANVEER AHMED Versus STATE
ORDER
1. Granted but subject to all just exceptions.
2. The facts leading to the present application for bail are that applicant/accused Tanveer Ahmed is facing trial under section 17(3), Offences Against Property - (Enforcement of Hudood) Ordinance, 1979 read with sections 392 and 34, P.P.C. in Sessions Case No.469 of 1997 before VIIth Additional Sessions Judge, Karachi (East) Karachi arising out of F.I.R. No-439 of 1997 of Police Station Tipu Sultan, Karachi East.
2. The brief facts of the prosecution case, as disclosed in the F.I.R., lodged by one Najmul Hassan Khawaja are reproduced hereinbelow:--
3. "I am residing on aforesaid address with my family members since last 7/8 months. I do business. On 6-6-1997 at about 11 O'clock in the night we slept. During night while I was sleeping when at about 3-00 a.m. one person awakened me by shaking my arm. I saw three young persons, one person was aged about 25/26 years, height about 5'-6", wheatish complexion, slim body, wearing blue Shalwar' and shirt, another was of-21/22 years, wheatish complexion, height about 5'-4", slim body, curly hairs, wearing brown Shalwar and shirt, third one was aged about 20 years, height 5'-4" slim body, wheatish complexion, wearing brown colour Shalwar and shirt. All the three had big daggers in their hands. One had also pistol which appeared to be artificial. They were standing by the side of my head. They signalled me to turn my face towards the wall. I acted accordingly. They tied my hands with clothes. Thereafter, they awakened my wife and tied her hands from the back. They demanded ornaments and cash and also directed us not to raise hue and cry. They demanded the key of almirah and beauty box. My wife opened the beauty box and they took away the ornaments, cash and valuable household articles. (Complete detail is given in F.I.R.). Report is lodged. Investigation be made."
3. The applicant/accused applied for bail before the Trial Court but the same was refused by impugned order, dated 4-5-1998.
4. The applicant/accused filed Cr.B.A. No.511 of 1998 before this Court and the same was dismissed by order, dated 22-6-1998.
5. The applicant/accused on the ground of statutory delay repeated the bail application before the Trial Court but the same was dismissed by impugned order, dated 23-7-1998.
6. Mr. Mehboob Ellahi Saham learned counsel for the applicant/accused has contended that he press the bail plea only on the ground of statutory delay; that the applicant/accused was arrested on 8-6-1997 but his trial is not concluded so far; that the delay was not caused due to any act or omission of the applicant/accused or any other person acting on his behalf; that the report of Jail Superintendent shows that his conduct in jail is satisfactory, therefore, he is entitled to bail as envisaged under proviso (3) to section 497(1), Cr.P.C.
7. Mr. Muhammad Ismail Memon learned counsel for the State has contended that the applicant/accused is hardened, desperate and dangerous criminal; that his act amounts to terrorism; that on the next day of incident he was arrested and robbed property worth lacs of rues was secured from his possession, therefore, his case is covered by proviso (4) to section 497(1), Cr.P.C. and he is not entitled to bail.
8. I have heard the learned counsel for the parties and I have also perused the impugned order and material placed on record.
9. The applicant/accused alongwith co-accused barged into the house of informant Najmul Hassan Khawaja during the odd hours of night duly armed with deadly weapons. They at the point of daggers overpowered the informant and his woman-folk and by tying their hands on their back forcibly took away the golden ornaments, watches, V.C.R., camera, T,V. cash and other valuable articles from the house of informant. On the next day applicant/accused alongwith his companion was arrested and robbed property was recovered from their possession. The report of S.H.0 filed with bail application is reproduced hereinunder in extenso:--
10. "From Tipu Sultan Police Station, Karachi, dated 29-6-1998.
11. In the Court of VIIth, Additional District Judge, East, Karachi, S.C. No. 169 of 1997
12. F.I.R. No. 139 of 1997, under section 17(3), E.H.O. Police Station Tipu Sultan, Karachi.
13. R/submitted.
14. The above case is registered at this police station against accused Tanveer Ahmed son of Shabbir Ahmed and Asad Junaid son of Qasim Din. In this case cash, jewellery worth R.s.3,00,000 have been recovered from them. The above case is pending for adjudication before the Honourable Court No other case is registered against the above mentioned accused at this police station.
15. (Sd.) Station House Officer,
16. Tipu Sultan Police Station.
17. Karachi 29-6-1998 "
18. Applicant/accused was correctly picked out in identification test and eye-witnesses have also fully implicated him. The very act of the applicant/accused was fearful, horrible and amounts to terrorism. It is observed by my learned brother Dr. Ghous Muhammad, J. in case of Muhammad Shafiq v. The State 1998 PCr.LJ 1299 as under:--
19. "... acts of terrorism cover actions which cause or are calculated to cause alarm, fright, dread, panic, horror, fearfulness etc. .,. We are all witnesses to a decay and decline in the law and order situation. The crime of car snatching and certain others have become a menace to the society and we are all hostages to such criminals. Though such crimes are directed against individuals who are the victims but in a wider context they affect the society at large . ... Thus, a crime against the society in view whereof the Court has to be cautious in granting bail as mandated by the Supreme Court in Imtiaz Ahmed v. The State PLD 1997 SC 545. " (Underlining is mine).
20. It will be pertinent to mention that for extending the benefit of proviso (3) of section 497(1), Cr.P.C. Court has to glance over the act of the accused as proviso (4) to section 497(1), Cr.P.C. is introduced arid intended for that purpose and Courts normally cannot loose sight of this aspect. Proviso (3) to section 497(1), Cr.P.C. is controlled by proviso (4) to section 497(1), Cr.P.C. In this context I am fortified by unreported Division Bench decision of this Court in the case of Dhani Bux and others v. The State (Criminal Bail Applications Nos.289 to 290 of 1998) to which' I was a member.
21. The act of applicant/accused amounts to "terrorism", therefore, his case is covered by proviso (4) to section 497(1), Cr.P.C. Merely, Jail Superintendent has opined that his conduct in jail is satisfactory is no ground for grant of bail.
22. The authorities in case of Jaggat Ram v. The State 1997 SCMR 361, Ali Hasan alias Mithu v. The State 1997 PCr.IJ 411, Abdul Majeed v. The State 1996 PCr.LJ 298, Muhammad Asim and others v. The Judge Special Court and others 1997 PCr.LJ 1890, Khuda Bux alias Khudo v. The State 1997 PCr.LJ 917, Saeeduddin v. The State 1987 MLD 1234, Zahid Hussain Shah v. The State PLD 1995 SC 49 and Mst. Zeenat Ali v. The State 1985 PCr.LJ 2595 cited by the learned counsel for applicant/accused are of no help and avail to him as the facts and circumstances of the cited cases are distinguishable from the facts and circumstances of the present case.
23. The upshot of the above discussion is that the bail plea of applicants/accused merits no consideration, consequently, bail application stands dismissed.
24. The observations made herein above are of tentative nature and the Trial Court will not be influenced thereby in any way at the time of final decision of the case and it will be free to conclude and arrive at its own findings on merits after evidence is recorded in the case.
25. N.H.Q./T-37/K Bail refused.