ORDER SHEET
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Date Order
with signature of Judge
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DATE OF HEARING 16.10.2015
Mr. Liaquat Ali Khaskheli Advocate for Applicant.
MR. Zahoor Shah APG for the State.
Syed Hasan Azhar Rizvi J; Applicant/accused has approached to this court after
rejection of his Bail Application by the Sessions Judge, Karachi-East in Bail
Application No.2338/2015 on 23.09.2015.
Learned
Counsel for the Applicant contended that the Applicant is innocent and has been
falsely implicated by the police due to malafide intention and ulterior motive
in order to extort money from accused. Learned Counsel urged that the encounter
took place and both police party and accused persons fired on each other from
close distance but surprisingly none of either party have received any single
injury. Learned Counsel for the Applicant further urged that from both sides
firing took place but strangely only 5 empty cartridge of pistils were found
from spot and 4 empty cartridges of police weapons were found, so that the case
comes within the ambit of section 497(2) Cr.P.C. Learned Counsel further
submits that bare reading of Memo of Arrest, Memo of Seizure and FIR this is
case of ineffective firing which does not constitute a prima facie under
section 324 PPC hence matter requires further inquiry. He has relied upon the
case of Farooq Ahmed versus the State reported in 2013 YLR 998, the case of
Khalid versus the State reported in 2013 P.Cr.L.J. 1547 and the case of
Muhammad Zahid versus the State reported in 2013 YLR 2614.
Learned APG
vehemently opposed the grant of bail to the Applicant and submitted that name
of the Applicant is mentioned in FIR and he was arrested at the spot, therefore
the applicant is not entitled for grant of bail.
I have
heard Mr. Liaquat Ali Khaskheli Advocate for Applicant, Mr. Zahoor Shah learned
APG for State and perused the material available on record as well as case law with
their assistance.
It is an
admitted position that no one from either party (police party or accused
persons) have received any injury when according to
contents of FIR accused persons with intention to kill police officials and to
shelter them made firing upon the police party. Whereupon the police party in
self-defence made firing on police party, therefore, ingredients of section 353
and section 324 are still wondering; because no one from either party has
received any single injury. Even no damage was caused to the police mobile of
the police officials and to the motorcycle of the accused persons. Apart from above, there is also violation of section
103, Cr.P.C. which is mandatory provision of law; when admittedly the incident
took place in a thickly populated area. No doubt, the offence as is cooked up will render the
assailants amenable and the act so did or done as alleged is also against the
society. Perhaps there are series of citations of our Hon’able Apex Courts
stretching the elements of section 353 and 324 PPC.
In the case
of Muhammad Zahid versus the State reported in 2013 YLR 2614 it has been
observed that:-
“Assault or use
of criminal force to deter a public servant from discharge of his duty, attempt
to commit qatl-e-amd and common intention---Bail, grant of---Further
inquiry---No one from either party had received any injury although allegedly
there was firing in between the Police and the assailants, even the police van
did not receive a single shot---Provisions of S.103, Cr.P.C. which were
mandatory were violated---Accused, however, had made out a fit case of further
inquiry---Bail was granted in circumstances”.
Above
are the reasons of my short order dated 16.10.2015 whereby the Applicant was
admitted to 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 learned Trial Court.
Observations made hereinabove are of tentative nature and the trial
Court shall not be influenced by any such observation.
J
U D G E
Karachi
Dated _________________