THE HIGH COURT OF SINDH AT KARACHI
Cr. Bail Application No.61 of 2020
Cr. Bail Application No.62 of 2020
Cr. Bail Application No.63 of 2020
Present:
Mr. Justice Abdul Maalik Gaddi
Justice Mrs. Rashida Asad
Applicant (in all three
Bail Applications) : Sheikh Sher Muhammad son of
Sheikh Ghulam Hussain through
Mr. Syed Hafizuddin, Advocate
Respondent : The State through Mr. Malik Ayaz A.
Khan, Chaudhry Mehmood Anwar, Special Prosecutors, Pakistan Rangers (Sindh) along with IO/ Inspector Islam Gul, Investigation West-I, Karachi and Mr. Abdullah Rajput, Deputy Prosecutor General
Date of hearing : 23.4.2020
Date of order : 23.4.2020
For hearing of Bail Application.
ORDER
Abdul Maalik Gaddi, J. – Through these bail applications, applicant seeks post arrest bail in Crimes No.63/2013, 235/2015 and 243/2015 registered at Police Station Pak Colony, Karachi under Sections 302/34 PPC read with Section 7 Anti-Terrorism Act, 1997; 23(I)A of Sindh Arms Act, 2013 and 4/5 of Explosive Substance Act, 1908. Prior to filing these bail applications, applicant approached to the trial Court for same relief, which was declined vide order dated 24.10.2019.
2. Brief facts of the prosecution case of main case as alleged in the FIR are that on 07.3.2013 at about 1430 hours ASI Nazeer Hussain returned back to Police Station along with proceedings of 174 CrPC and brought the 154 CrPC statement of complainant Inspector Muhmmad Asim, wherein it was alleged that he was posted as R.I. at F.C. Wing, Pak Rangers, Tariq Community Centre, Block-A, Nazimabad, Karachi, where he was performing his official duties. He further stated that Hawaldar Muneer Ahmed No.R-117592 and Hawaldar Aijaz Ahmed No.R-133302 were also posted at F.C. Wing and deployed for intelligence duties. On 05.3.2013, both went to Lee Market on motorcycle No.AFR-2012 to perform official assignment. Hawaldar Aijaz Ahmed was armed with his licensed pistol. The last conversation of complainant with both of them was held at about 1730 hours when they were available at Lee Market Eight Chowk. Later on, the cell phones of both Hawaldars were switched off. Due to disconnection of contact, the complainant started to collect information that whether they were kidnapped, hence he inquired from different sources. However, they could not be traced, later on two brutally murdered dead bodies were found in the vicinity of Pak Colony which were brought at Civil Hospital, Karachi, where constable Basharat Ali identified them as Aijaz Ahmed and Muneer Ahmed. It was alleged that both the Hawaldars were kidnapped and murdered by unknown persons at unknown place, and later on their dead bodies were thrown at Mewa Shah graveyard, Panjo Village near KMC flats Anjuman-e-Sodagran graveyard, hence, his statement was incorporated in the book of 154 CrPC maintained at PS Pak Colony.
The applicant/ accused Sheikh Sher Muhammad was arrested and interrogated, as such during interrogation he disclosed the information to police and volunteer to recover the crime weapon, therefore, on such information police party came to the Mewa Shah graveyard compound near KMC flats on 04.10.2015, wherefrom recovered one 09mm pistol bearing No.T.6472-11 A.F. 00261, hence such Mashirnama was prepared and FIR bearing No.235/2015 under Section 25(1) of Sindh Arms Act, 2013 was registered against accused at P.S. Pak Colony, Karachi.
Likewise, on 13.10.2015 he was interrogated in main case, during interrogation accused volunteer to recover one hand grenade concealed by him in Baloch Mewa Shah graveyard Goli Mar Karachi. On his information accused led the police party to pointed place, where on his pointation one hand grenade RGD with detonator was recovered in presence of police mashirs. Accordingly, the accused brought back at PS, where FIR bearing crime No.243/2015, under Section 4/5 of Explosive Substance Act, 1908 was also registered against him at PS Pak Colony.
3. Mr. Syed Hafizuddin, learned counsel for applicant argued that applicant is innocent and has been falsely implicated in these cases by the complainants due to ulterior motives; that there is no specific allegation against the applicant in the main FIR and after his arrest in the main case, he has not been put into identification test and when the applicant was under arrest in the main crime, the recovery of crime weapons were foisted against him and no independent person of the locality has been cited as a witness of the recoveries in order to show transparency on the part of police; therefore, according to him false implication of the applicant in these cases with due deliberation cannot be ruled out; that in these matters complainant and Medico Legal Officer have been examined. During the course of arguments he has drawn the attention of this Court towards the contradictions in between the contents of the FIR as well as witnesses examined before the trial Court; that the applicant is behind the bars for the last five years but the trial still has not been concluded and the applicant is aged about sixty five (65) years and facing heart problem and he is not being treated properly inside the jail. Therefore, he was of the view that the case of the applicant requires further inquiry and has prayed for bail in these cases.
4. On the other hand, Mr. Malik Ayaz A. Khan, Special Prosecutor, Pakistan Rangers Sindh assisted by Mr. Abdullah Rajput, Deputy Prosecutor General Sindh, while opposing these bail applications argued that applicant/ accused is very much involved in these cases, which appear to be serious and heinous in nature. He further submits that in main case, two innocent persons namely Hawaldar Aijaz Ahmed and Hawaldar Munir Ahmed belonging to Intelligence Wing, Pakistan Rangers were brutally murdered at the hands of applicant and his accomplice and during interrogation, the present applicant led the police party to the place from where he hidden the crime weapons as stated in the FIRs in presence of mashirs, who have no inimical terms with present applicant, prima facie shows the involvement of the applicant in the commission of offences which carries punishment falls within the prohibitory clause of Section 497 CrPC.
5. We have heard the learned counsel for the parties at a considerable length and have perused/ considered the case files so made available before us with their able assistance.
6. It is noted that as per contents of the FIR of the main case, it reveals that in this matter, unfortunately two innocent persons namely Hawaldar Aijaz Ahmed and Hawaldar Munir Ahmed, who belonged to Intelligence Wing, Pakistan Rangers while performing their official duties, have lost their precious lives. It is alleged against the applicant that he along with his companion kidnapped the deceased from unknown place, after brutal beaten and after cutting neck and removing skin from the face of Hawaldar Aijaz Ahmed and killed the Hawaldar Munir Ahmed by using rope in his neck. It is also noted that they have been brutally murdered and the FIR of the said incident was lodged promptly by complainant Rangers Inspector Muhammad Asim. No doubt, the name of present applicant does not appear in the FIR of main case, this fact itself shows that the complainant had no enmity with the applicant, if he had any enmity with the applicant then he would have named the applicant in the FIR. No enmity has been alleged by the applicant against the complainant. Names of the deceased are mentioned in the FIR. The dead-bodies were recovered and identified by PW Sipahi Basharat Ali, who is also a witness of the case, his evidence is yet to be recorded before the trial Court.
7. It is also noted that during investigation, investigating officers of the cases have recorded the statements of prosecution witnesses, who during their statement recorded under Section 161, Cr.P.C. have supported the prosecution case. No enmity has also been alleged against them. It reveals from the record that in these matters, the evidence of two prosecution witnesses namely Rangers Inspector Muhammad Asim and MLO Dr. Jagdeesh Kumar have been recorded. It is argued by learned counsel for the applicant that applicant is not named in FIR and there is contradiction in between the evidence of the prosecution witnesses as well as in FIRs, therefore, the applicant is entitled for bail. We have, however, not felt persuaded to agree with the learned counsel for applicant at this bail stage for the reasons that non-mentioning the name of the applicant in FIR in such like cases is immaterial. It could not be expected that at the time of incident, the accused disclose his name or his identity. It is settled principle of law that while deciding the bail application deeper appreciation of evidence cannot gone into but a bird eye view is to be taken to available record before the Court to satisfy prima facie, whether the accused is connected with the commission of offence or not.
8. On perusal of case files, it reveals that present applicant was arrested on 23.9.2015 in the main case and during interrogation, he has admitted his guilt and on 04.10.2015, the present applicant led the police party to Mewa Shah graveyard, from where on his pointation, one 9mm pistol along with ten live rounds belonging to deceased Hawaldar Aijaz Ahmed recovered in presence of SIP Muhammad Rafiq and ASI Dost Muhammad. Again on 13.10.2015, one hand grenade also recovered on his pointation in presence of mashirs. Their evidence is yet to be recorded by the trial Court. It is argued by Special Prosecutor, Pakistan Rangers Sindh that the recoveries have been made on the pointation of applicant, which is good piece of evidence against him under Article 40 of the Qanun-e-Shahadat Order, 1984. There is no explanation by learned counsel for applicant with regard to the recoveries which have been effected on the pointation of applicant.
9. As regard to the contention of learned counsel for the applicant that there is a delay in conclusion of trial of applicant and in this backdrop, the right of concession of bail on statutory ground has been accrued to applicant which cannot be denied, no doubt when an accused is charged and detained for an offence punishable with death and his trial for such offence has not been concluded for a continuous period exceeding to two years is entitled for bail as provided in third proviso to Section 497(1), Cr.P.C. However, a clog has been imposed upon such kind of accused person in shape of fourth proviso to Section 497(1), Cr.P.C. which states that when an accused who is in the opinion of the Court is a hardened, desperate and dangerous criminal or is accused of an act of terrorism punishable with death is not entitled to get the concession of bail on the ground of delay in non-conclusion of trial. The element of hardened, desperate and dangerous criminal can be ascertained from the previous record of the accused or by manner of occurrence committed by him. It is discernible from the record that applicant is implicated by complainant and other witnesses with the contention that applicant along with his companion not only kidnapped the deceased, but after brutal beaten, cutting neck and removing skin from the face of Hawaldar Aijaz Ahmed and killed the Hawaldar Munir Ahmed by using rope in his neck. During the course of arguments, learned Special Prosecutor, Pakistan Rangers Sindh also filed previous criminal record of the applicant showing that applicant was previously involved in three cases of police station Garden. Under these circumstances, tentatively, this act of applicant appears to come within the definition of terrorism punishable with death or imprisonment for life and also comes within the ambit of fourth proviso of Section 497(1), Cr.P.C.
10. Since the sufficient evidence is available against the applicant to connect him in these crimes, therefore, the applicant does not deserve for grant of bail. We, accordingly, dismiss these bail applications. Since the applicant is stated to behind the bars for long time, therefore, trial Court is directed to proceed the matter expeditiously and decide the same as early as possible as per law and no unnecessary adjournment shall be granted to either side.
11. Before parting with the order, we would like to make it clear that observation, if any, in this order is tentative in nature and shall not effect the merits of the case. Since the applicant is also stated to be ill, therefore, jail authorities are directed to provide all medical facilities to the applicant/ accused inside jail and if his treatment is not possible inside jail then he may be referred to any government recognized hospital for his treatment as per law.
12. These bail applications were dismissed by us in open Court after hearing the parties’ advocates on 23.04.2020 and these are the detailed reasons thereof.
Office is directed to immediately send the copy of this order to the trial Court for information and compliance through some swift means, preferably, within three (3) days from today.
JUDGE
JUDGE
Asim, Faizan/PAs