ORDER SHEET
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Date Order
with signature of Judge
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DATE OF HEARING 12.07.2013
Mr. Muhammad Nishat Warsi Advocate for the
Applicant.
Mr. Imtiaz Ali Jalbani APG alongwith SIP Aamir
Altaf of P.S. Nabi Bux.
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SYED
HASAN AZHAR RIZVI J; By this order I intend to
dispose of instant Bail Application filed by the Applicant Sher Zaman son of
Hayat Khan.
2. Brief
facts of the case as incorporated in the FIR are that the Complainant is
working as Operation Supervisor with the Security Company in the name and style
of ‘KNS Security Company’. Said company had detained two guards, one Ibrahim
son of Rab Khan at Bungalow No.B-19, Khayaban-e-Sahar, near Shahbaz Commercial,
Phase-VI, DHA Karachi, where another Guard namely Sher Zaman son of Hayat Khan
was also performing his duties with the owner of the said bungalow namely
Zeeshan as his Personal Security Guard. On 21.07.2012, General Manager of the
company directed the complainant on telephone and informed him that Ibrahim has
committed some unusual acts and directed him to visit the said Bungalow and
discuss with him. Whereupon the complainant reached at the said bungalow at
about 2330 hours, where Sher Zaman opened the door and complainant enquired
about Ibrahim, Sher Zaman replied that Ibrahim is offering prayer and when
Ibrahim get free after performing prayer he inquired about the complainant. On
such situation Ibrahim became angry and used filthy language, the complainant
tried to cool him down but Ibrahim took out his Rifle Repeater Shot gun and
took the position. On seeking such act of Ibrahim, Sher Zaman also loaded his
Rifle MP5, 30 Bore, seeing the situation Ibrahim fired upon Sher Zaman and in
retaliation Sher Zaman also fired on Ibrahim, who tried to escape from there.
In the meantime, he was intercepted by the complainant, Ibrahim snatched his pistol
and also fired on him and he received one bullet shot injury on his left arm
from front side. It is further stated in the FIR that all three were injured at
that time. On hearing such noise people gathered there and ambulance was called
and all the three injured were shifted to Jinnah Hospital where they were
provided medical treatment and during treatment Ibrahim succumbed to injuries.
Hence, this FIR was lodged by the Complainant against Sher Zaman for murder of
Ibrahim.
3. Learned
Counsel for the Applicant submitted that the Applicant is innocent and he was
victim of the incident and received injuries during his self- defence. Learned
Counsel urged that on bare reading of the FIR and the affidavit already filed
by the complainant it is apparent that the deceased Ibrahim Security Guard was
aggressor and started firing on the other security guards as a result thereof the
complainant and accused both were injured. Learned Counsel for the Applicant
further submitted that the complainant filed affidavit before this Court
wherein he stated that the accused had fired on the deceased in his self-defence
and after making firing by the deceased. He further contended that the Trial
Court has failed to consider the material facts and circumstances of the case
and dismissed the bail application. Learned counsel has placed reliance upon
1998 SD 34 (Shakeel Ahmed versus the State). Complainant appeared before this
Court, who was identified by the Investigating Officer, filed his affidavit
sworn on 12.07.2013 before this Court, the same was taken on record while
reaffirming the contents of FIR the complainant stated on Oath in his affidavit
as under:-
“2. That I
say that on fateful day I received call by the General Manager that the guard
posted at bungalow namely Ibrahim son of Rub Khan was doing some unpleasant
activities and quarrel with accused Sher Zamn. On such information, I reached
at the place of incident. Sher Zaman opened the door for me and informed that
Ibrahim is offering prayer. As soon as Ibrahim completed his prayer, he came to
me and I discussed with him the issue of complaint received against him, on
such interrogation/discussion he became angry and used filthy language not only
with me but with accused Sher Zaman. During such quarrel deceased Ibrahim took
out his arm and put on us. I tried to calm him down, but to his anger Sher
Zaman has also took his arm. Initially, Ibrahim had fired on us by which Sher
Zaman had received bullet injury and rebuttal caused bullet injury to the
deceased Ibrahim. During the incident, deceased had also fired on me so I also
received bullet injury.
3. That I
say that I had lodged the FIR in order to reach on the decision that who is the
actual culprit but during treatment the deceased succumbed to his injuries.
4. That I
say that accused though have fired on the deceased but in defence and after
making of fire by the deceased and I have also received information that the
deceased was involved with some unknown persons and called them at the bungalow
without permission of the owner of the bungalow and that’s why he had not
replied properly to me when I asked about the presence of unknown person at the
gate of the bungalow.
5. That I
say that in my view accused is innocent and the victim of the circumstances and
I know him for the last ten years, therefore, I would have no objection if the
accused Sher Zaman is granted bail or acquitted from the charges.
6. That I
say that I have given this affidavit without any duress, pressure or threat
only on summoning me by this Hon’ble Court and so far my information is
concerned, accused is also required medical attention and treatment, therefore,
he may be released on bail.”
4. Mr.
Imtiaz Ali Jalbani learned APG vehemently opposed the grant of bail to the
Applicant and submitted that the plea of self-defence may be decided after
recording of evidence and at this stage applicant is not entitled for grant of
bail.
5. I have
heard Mr. Muhammad Nishat Warsi Advocate for the Applicant, Mr. Imtiaz Ali
Jalbani learned APG and perused the material available on record with their
assistance
6. On bare reading of the
FIR it is crystal clear that deceased Ibrahim started firing on the complainant
as well as present applicant/accused, who both sustained injuries and the
Applicant/accused in his defence fired on deceased Ibrahim, who received
injuries and later on succumbed to death. From the contents of the affidavit
filed by the complainant it is crystal clear that the complainant is exculpating the accused, the case of the
prosecution becomes that of further inquiry. Such version find support from the
cases reported in 1979 SCMR 137, 1995 MLD 1826 and 1988 P.Cr.L.J. 707. Case Law
cited by the learned Counsel for the Applicant is not applicable in the
circumstances of the present case.
7. Above are the reasons of
my short order dated 12.07.2013 whereby present Applicant was granted bail
subject to furnishing solvent surety in the sum of Rs.100,000/- (Rupees One lac
only) with P.R. Bond in the like amount to the satisfaction of the Trial Court.
8. The observations made
are of tentative nature and the Trial Court shall not be influenced by any of
such observations.
Karachi J
U D G E
Dated:_________________