ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

 

Criminal Bail Application Nos.795, 844, 892 & 1757 of 2023

              Present:

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