MUHAMMAD AZEEM vs THE STATE

ORDER

1. ' This bail application has been filed on behalf of Muhammad Azeem/accused who was arrested on 5-1-1997, in Crime No,5 of 1997. The incident took place on 5-1-1997 at about 6-30 p.m. And the report was lodged on the same day at about 19-15 hours with Police Station New Town, Karachi (East), under section 17(2), Offences Against Property (Enforcement of Hudood) Ordinance, 1979.

2. ' The brief facts as per F.I.R. Are that on 5-1-1997, the complainant, who is a taxi driver was in his taxi near Hasan Square when three young boys hired him and directed him to go to Bahadurabad. On the way when the taxi was slowed down one of the three boys took out his pistol and forced the taxi driver to go through and not to stop anywhere. However, he saw a police mobile of New Town Police Station and gave an indication with head lights that he is under trouble and as such the said mobile chased the taxi and encircled it. All the three passengers were arrested and a T.T. Pistol was recovered from the applicant and thereafter on the complaint of the taxi driver the F.I.R. 5 of 1997 was registered. However, the challan was submitted under section 17(1) and not under section 17(2) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979.

3. ' The contention of the learned counsel for the applicant/accused is that the word "terrorism" has not been defined anywhere in the statute except in Anti-Terrorism Act where the word "Terrorist act" has been defined and as such for the definition of the word terrorism one has to fall back to the ordinary dictionary meaning. She relied on the meaning given in the Black's Law Dictionary, page 1473 as under:-- "Terror. Alarm; fright; dread, the state of mind induced by the apprehension of hurt from some hostile or threatening event or manifestation; fear caused by the appearance of danger. In an indictment for riot at common law, it must been charged that the acts done were ' to the terror of the people' . "

4. An element of offence of aggravated kidnapping, is any act which is done to fill with intense fear or to care by threat or force. Regers v. State Tex. Cr. App.; 687 S.W. 2d 337, 341."

5. ' She also relied in Chamber's 20th Century Dictionary page 1335 for the meaning of the word "terror" as:-- "Terror, extreme fear, a time of, or Government by, terrorism; an object of dread; one who'd makes himself a nuisance."

6. ' The next contention of the learned counsel for the applicant/accused is that under section 17(1) minimum punishment has been provided as three years and without prejudice to her case since only an attempt was made to snatch the taxi and no harm was caused to the taxi driver/complainant the accused is entitled to bail. It was further submitted that even if it is considered as an attempt of committing robbery under section 393, P.P.C., the maximum sentence provided is of 7 years and, since, it was only an attempt, the maximum penalty cannot be awarded to the accused/applicant. She relied on the case of Tariq Bashir and 5 others v. The State PLD 1995 SC 34, wherein it was observed as under:-- "It is crystal clear that in bailable offences the grant of bail is right and not favor, whereas in right but concession non-bailable offences the grant of bail is not grace. Section 497, Cr.P.C. Divided non-boilable offences into two categories i.e. (i) offences punishable with death, imprisonment of life or imprisonment for ten years; and (ii) offences punishable with imprisonment for less than ten years. The principle to be deduced from this provision of law is that in non-boilable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception."

7. ' The learned counsel further submitted that the accused/applicant is in jail since 5-1-1997 and has already passed more than one year in jail and even on statutory ground he is entitled to bail.

8. ' Mr. Habib Ahmed, the learned A.A.-G., concedes that it is a case of attempt to commit robbery which does not fall within the prohibitory clause of section 497, Cr.P.C.

9. ' I have heard both the counsel and have perused the law and case-law relied upon by Miss Mubina Suleman, counsel for the applicant.

10. Admittedly, no harm/injury was caused to any one and as the learned A.A.-G. Has conceded it is an attempt of robbery and does not fall within the prohibitory clause. According to the accused/applicant he is innocent and has been falsely implicated.

11. ' Relying on the judgment of the Supreme Court and on the facts, I admit the accused to bail on furnishing security of Rs,2,00,000 (Rupees two lace only) and P.R. Bond of the like amount to the satisfaction of the trial Court.