SATTAR and another vs THE STATE

ORDER

' Applicant S. Tariq Ali and Nadir Raza who are detained in Crime No,108 of 1989, Police Station Malir City, under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, applied for bail before learned IVth Additional Sessions Judge (East) Karachi, but without success. They have now approached this Court with the same prayer.

2. It is alleged that on 15-8-1989 at 4-15 p.m., the present applicants along with co-accused Mohsin committed armed robbery at Raja Petrol Pump, situated on National Highway, Karachi, by depriving complainant Aurangzeb of a cash of Rs,500 and while doing so they caused fire-aim injury to P.W. Muhammad Suleman. The report of this incident was lodged at 4-30 p.m. A chase was also given to the culprits who were riding on a motor-cycle and the present two applicants are said to have been arrested immediately after the incident and were identified by complainant Aurangzeb. The amount which was robbed by the culprits was also recovered from their possession.

3. I have heard Mr. Habibullah Samo, learned counsel for applicants and Mr. Shaukat H. Zubedi, learned A.A.-G. For State. The latter has opposed the bail application.

4. The offence with which the applicants are charged falls within the prohibitory clause of section 497, Cr.P.C. And the learned counsel in spite of his strenuous arguments was not able to bring the case within the mischief of subsection (2) of section 497, Cr.P.C. He simply pointed out certain contradictions in respect of the amount said to have been recovered from the possession of each of the two applicants. At this stage it is only a prima facie opinion which is to be formed without making a detailed examination and deeper appreciation of evidence. Again the basic question which must prevail to the mind of the Court, while considering the question of bail in cases of this nature, is whether the grant of hail is in the interest of justice or it will thwart the course of justice. It is a broad daylight incident and the applicants who are young persons have acted in a reckless manner indicating the depravity of their character. They were apprehended soon after the incident and were identified by complainant Aurangzeb who was with the police party. They were also put to identification test and were picked up by three witnesses correctly. The robbed money was also recovered from their respective possession. Under these circumstances there is hardly any merit in the bail application.

5. The bail application in respect of both the applicants is also pressed on the ground of their young age and both of them were referred to Police Surgeon for examination and certificate.

According to report of Police Surgeon, the age of applicant S. Tariq Ali is between 21 and 22 years and, therefore, the learned counsel representing him has not pressed his bail application on the ground of age. The learned counsel has, however, pressed the bail application in respect of applicant Nadir Raza, who is found to be 13 to 14 years of age. The first proviso to subsection (1) of section 497, Cr.P.C. Is an exception to the general rule of not releasing a person on bail who, if there appear reasonable grounds for believing, has been guilty of an offence punishable with death, imprisonment for life or 10 years. The wording of this proviso makes it clear that this provision of law is only discretionary. The word 'may' appearing in this proviso makes the intention of legislature very clear. The release of such a person on hail is, therefore, not an automatic process. The cases reported as Muhammad Ashiq alias Ashiq Ali v. The State 1980 P Cr. L J 652, Muhammad Saleem v.

The State 1985 P Cr. L J 708 and Asad Khan v. The State 1985 P Cr. L J 1676, cited by Mr. Habibullah Samo do not lay down any rule that the word 'may' used in first proviso to subsection (1) of section 497, Cr.P.C. Means 'shall' or 'must'. Applicant Nadir Raza is involved in a very serious case. There is alarming increase of such cases and, therefore, I do not find it a fit case for exercise of discretion in his favour. The bail application made on behalf of both the applicants is, therefore, dismissed.