IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Bail Application No. 1963 of
2023
|
DATE |
ORDER
WITH SIGNATURE OF JUDGE. |
Present: Mr. Justice Naimatullah
Phulpoto
Justice Mrs. Kausar
Sultana Hussain
For hearing of bail application
06.10.2023
Mr.
Shah Imroze Khan advocate for the applicant
Mr. Ali Haider Saleem Addl. P.G along with I.O/PI Syed Muhammad Sarfaraz CTD
-.-.-.-.-.-.-.-.
Naimatullah Phulpoto,
J.- Asif-ur-Rehman
applicant seeks post arrest bail in Crime No. 112/2023 for offences under
Sections 11-H(ii)/11-N of ATA 1997 registered at P.S CTD, Karachi.
2. Brief facts leading to the filing of
his bail application are that on 13.07.2023 ASI Shahid
Hussain of PS CTD along with his subordinate staff left PS for patrolling.
During patrolling, police received spy information that a person belonging to a
proscribed organization is available at Jamal Masjid Tayyab
Mianwali Colony. Police arrived at the pointed place
and apprehended applicant and on his personal search recovered one receipt book
of funds containing stamps of Tehreek Taliban
Pakistan, cash amount of Rs.6500/-, one register. Mashirnama of arrest and
recovery was prepared at the spot in presence of mashirs. Thereafter, accused
and case property were brought at P.S where the aforesaid FIR was registered
against them on behalf of state. After usual investigation, challan
was submitted against the accused.
3. Applicant applied for post arrest bail
before learned Judge, ATC No.II, the same was rejected
vide order dated 26.08.2023.
4. Mr. Shah Imroze
Khan advocate for the applicant mainly contended that ingredients of the
alleged offences are not attracted from the material collected by the I.O
during investigation; that though it was a case of spy information but no
private person was associated to witness the recovery; that receipt book of the
proscribed organization has been foisted upon the applicant. Lastly, it is
submitted that a Constitution Petition was filed before this Court regarding
missing of the applicant on 10.07.2023, whereas, arrest of the applicant has
been shown in this court on 13.07.2023 and the police in order to save its skin
has involved the applicant in the present case.
5. Ms. Rahat
Ahsan, Addl. P.G while opposing the instant bail application argued that receipt
book of the proscribed organization was recovered from the possession of
applicant. However, learned Addl. P.G conceded that Constitution petition
regarding missing of the applicant was filed prior to his arrest.
6. We have heard learned counsel for the
parties and perused the relevant record.
7. Applicant is charged with
sections 11-H(ii) and 11-N of the Anti-Terrorism Act, 1997, which read as
follows:
11-H (1)……………….
(2) A person commits
an offence if:-
(a) he receives money or other property; and
(b) intends that it should be used, or has reasonable
cause to suspect that it may be used, for the purposes of terrorism [or by a
terrorist or organization concerned in terrorism].
(3)………………..
(4)………………..
11-N. Punishment under Sections
11-H to 11-K-(1)Any person who
commits an offence under sections 11-H to 11-K, shall be punishable on
conviction with imprisonment for a term not less than [five years] and not
exceeding [ten years] and with fine [not exceeding twenty five million rupees].
(2) If a legal person commits an offence under sections 11-H to 11-K
such person shall be liable on conviction to a fine not exceeding fifty million
rupees.
(3) Every director, officer or employee of such legal person found
guilty shall be punishable on conviction with imprisonment for a term not less
than five years and not exceeding ten years and with fine not exceeding twenty
five million rupees:
Provided that the punishment of the director, officer or employee shall
be effective and in due proportion to his role.
8. It
appears that apparently case of the prosecution is based upon the alleged
recovery of receipt book as well as the statement of the applicant before I.O
during investigation. Such statement before the police is inadmissible in
evidence under Article 39 of the Qanun-e-Shahadat Order, 1984. I.O has also failed to examine any
private person with regard to the allegation mentioned in the FIR. Except
recovery of receipt book, no other incriminating material has been collected during
investigation by the I.O. The I.O could not establish the nexus of the act of
the applicant with any banned organization. Even otherwise, the evidentiary value of the receipt book without safe
custody is to be determined at trial. Record reflects that a Constitution
Petition of missing of the applicant was filed on 10.07.2023 whereas arrest of
the applicant was shown on 13.07.2023. According to investigation officer, who
is present in Court, the applicant/accused is no more required for
investigation and is behind the bars since last 03 months. It is well settled
law that 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
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. Reliance is placed on the case of Muhammad Arshad vs. The State and another
(2022 SCMR 1555).
9. Prima facie,
there are no reasonable grounds for believing that the applicant has committed
the alleged offences but there are sufficient grounds for further inquiry into his
guilt. Resultantly, concession of bail is extended to applicant Asif-ur-Rehman son of Habib-ur-Rehman, subject to his furnishing solvent surety in
the sum of Rs.200,000/- (Rupees Two hundred thousand) 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
applicant on merits.
JUDGE
JUDGE
Wasim ps