IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Bail Application
Nos.795, 844, 892 & 1757 of 2023
Mr. Justice Naimatullah Phulpoto
Mr.
Justice Amjad Ali Sahito
Criminal
Bail Application No.795 of 2023
Qamar Zaman vs. The State
Criminal
Bail Application No.844 of 2023
Muhammad
Asif Khan vs. The State
Criminal
Bail Application No.892 of 2023
Ashrafullah vs. The State
Criminal
Bail Application No.1757 of 2023
Waqar Ali vs. The State
14.11.2023
Mr.
Zulfiqar Ali Mashori,
advocate for applicants
Mr.
Ali Haider Saleem,
Additional Prosecutor General
Raja
Faisal Rafiq, advocate for complainant
IO/PI
Muhammad Javed of AVCC, CIA, Karachi
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Naimatullah Phulpoto,
J.- By
this order we intend to decide Criminal Bail Applications Nos.795, 844 and 892
of 2023, moved by applicants/accused Qamar Zaman, Myhammad Asif Khan and Ashrafullah for
pre-arrest bail and Criminal Bail Application No.1757 of 2023, filed by
applicant/accused Waqar Ali for post-arrest bail, in
Crime No.1210/2022, registered at P.S. Shah Latif
Town, Karachi for offences under Sections 147, 148, 149, 342, 506-B, 380,
337-A(i), 384, 385 read with Section 365-A, PPC and Section 7 of the
Anti-Terrorism Act, 1997. Prior to this, applicants/accused Qamaz
Zaman, Muhammad Asif Khan
and Ashrafullah applied for bail before arrest before
learned Judge, Anti-Terrorism Court-II, Karachi, the same was rejected vide
order dated 08.03.2023. Post arrest bail application moved on behalf of
applicant/accused Waqar Ali was also dismissed by the
trial Court vide order dated 08.03.2023.
2. Learned advocate for applicants/accused
argued that there is dispute over the house between the parties; that eyewitness
of the case, namely, PW Nasir Mushtaq,
during investigation had appeared before Judicial Magistrate-II, Malir Karachi and filed affidavit that the prosecution case
is false. It is further argued that application was also submitted by
eyewitness Nasir Mushtaq
before Inspector General of Police Sindh; that PW Nasir
Mushtaq was pressurized by the complainant and wife
of PW Nasir Mushtaq
approached learned Sessions Judge Malir by filing
Criminal Petition No.217/2023 against the police officials as well as
complainant Muhammad Yousuf. Lastly, it is argued
that ingredients of Section 365-A, PPC are not made out and the case against
the applicants/accused requires further inquiry. As regards to the mala fide on
the part of the complainant is concerned, it is submitted that there is dispute
over the house and due to such dispute false FIR has been registered against
the applicants/accused. In support of his contentions, reliance is placed on
the cases of Babar Hussain vs
The State and another (2020 SCMR 871), Qurban Ali vs.
The State and others (2017 SCMR 279), Punnal Khan vs.
the State (2014 PCr.LJ 591) and Nabi
Bux alais Naboo vs The State (2010 PCr.LJ 979).
4. Mr. Ali Haider
Saleem, learned Additional Prosecutor General Sindh, submits
that complainant and PWs have fully implicated the applicants/accused in the
commission of offence. As regards to the affidavit filed by PW Nasir Mushtaq before Judicial
Magistrate-II, Malir Karachi is concerned, it is
submitted that evidentiary value of such affidavit is yet to be determined by
the trial Court. However, Additional P.G. submits that in the FIR it is
mentioned that there is dispute between the parties over the house. Learned
Additional P.G. opposed the bail applications.
5. Learned advocate for complainant argued
that affidavit of eyewitness Nasir Mushtaq has been obtained by force and sufficient material
has been collected against the applicants/accused in the commission of offence.
It is further submitted that applicant/accused Muhammad Asif
Khan is involved in several other criminal cases. Lastly, it is submitted that
the offence as alleged by the prosecution is made out and prayed for dismissal
of the bail applications.
6. We have heard the learned counsel for
the parties and perused the relevant record.
7. From the perusal of contents of FIR and
other material, it transpires that there is dispute over the house between the
parties. Eyewitness Nasir Mushtaq
filed affidavit before Judicial Magistrate-II, Malir during
investigation and stated that on 16.10.2022, complainant gave him his ATM Card
for withdrawal of cash amount Rs.100,000/- and after withdrawal of the amount,
he handed over the same to complainant. He has further submitted that an amount
of Rs.1,500,000/- of accused Raja Asif
is outstanding against the complainant regarding a plot and he was surety.
Further it is mentioned by him that instant case is a false. It appears that
during investigation, PW Nasir Mushtaq
had also moved an application before the Inspector General of Police Sindh in
which it was mentioned that he was not the eyewitness of the incident and
prosecution story is false. Applicants/accused are
nominated in FIR but there was delay of four days in lodging of FIR for which
no plausible explanation has been furnished. Investigating Officer submits that
during investigation, affidavit of eyewitness Nasir Mushtaq before Judicial Magistrate, his application to the
Inspector General of Police Sindh and Criminal Petition No.217/2023, filed by Mst. Sumaira wife of Nasir Mushtaq before learned
District and Sessions Judge Magistrate, were not produced before him. So far as
the contention of learned advocate for complainant that some criminal cases are
pending against applicant/accused Muhammad Asif Khan
is concerned, it may be observed that mere pendency of criminal cases against
an accused is no ground to disentitle him from concession of bail. Ingredients
of offences under Sections 365-A, PPC and 7 Anti-Terrorism Act, 1997 are yet to
be determined at trial. In the case of Syed Amanullah
Shah versus the State and another (PLD 1996 Supreme Court 241) Supreme Court of Pakistan has held
that if there is a reasonable doubt in the prosecution case, its benefit shall
be extended to the applicant/accused at bail stage. Relevant portion is
reproduced as under:
“5. ……………..
So whenever reasonable doubt arises with
regard to the participation of an accused person in the crime or about the truth/probability
of the prosecution case and the evidence proposed to be produced in support of
the charge, the accused should not be deprived of benefit of bail. Freedom of
an individual is a precious right. Personal liberty granted by a Court of competent
jurisdiction should not be snatched away from accused unless it becomes
necessary to deprive him of his liberty under the law. Where story of
prosecution does not appear to be probable, bail may be granted so that further
inquiry may be made into guilt of the accused.”
8. In
the above stated circumstances, there is
a reasonable doubt in the prosecution case, we are
inclined to extend its benefit to the applicants/accused at bail stage, as the
liberty of the accused persons is involved in this case.
9. In the view of above, prima facie, there are no reasonable
grounds for believing that the applicants/accused have
committed the alleged offences but there are sufficient grounds for further
inquiry into their guilt. Resultantly, interim pre-arrest bail already granted
to applicants/accused Qamar Zaman,
Muhammad Asif Khan and Ashrafullah
is confirmed on the same terms and conditions. However, concession of post
arrest bail is extended to applicant/accused Waqar
Ali, subject to his furnishing solvent surety in the sum of Rs.200,000/- (Rupees Two
Lac) and P.R. bond in the like amount to the satisfaction of the trial
Court.
10. Needless to mention here that the observations made herein
above are tentative in nature, the trial Court shall not be influenced by the
same while deciding the case of the applicants/accused on merits.
The instant criminal bail applications are disposed of in
the above terms.
J U D G E
J
U D G E
Gulsher/PS