IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Bail Application No. 122 of
2024
|
DATE |
ORDER
WITH SIGNATURE OF JUDGE |
Present: Mr.
Justice Naimatullah Phulpoto
Mr. Justice Khadim Hussain Tunio
For hearing of bail application
15.02.2024
M/s. Masood Khan and Hafiz Abdul Rahim Abid
advocates for applicants/accused
Ms. Rahat Ahsan Addl. P.G
PI/ Akbar Hameed SSP Office Investigation
Zone-III, Korangi
-.-.-.-.-.-.-.-.
Naimatullah Phulpoto, J.- Applicants/accused Suleman
Shah, Sayed Hussain Shah, Syed Abdul Jabbar and Ghulam Mustafa seek post arrest
bail in Crime No.239/2023 for offences under Sections 353/ 324/ 186/ 342/ 147/ 148/149/337A(i)
PPC read with Section 7 of ATA 1997. Prior to this applicants/accused applied
for bail before learned Judge, ATC-VIII, Karachi, the same was rejected vide
order dated 11.08.2023.
2. Learned advocates for applicants/accused
mainly contended that learned Judge ATC lacks the jurisdiction to try this
case; that according to the case of prosecution incident occurred in a shop,
but shopkeeper has not been examined during investigation; that it was police encounter
case and injuries sustained by PCs Ismail and Asif are not specifically
attributed to anyone; that applicant/accused Ghulam Mustafa sustained injuries
at the hands of police in a fake encounter case; that applicants/accused have
been falsely implicated in this case; that investigation is complete and
applicants/accused are no more required for investigation and that the
applicants/accused are in custody since 08 months, yet charge is not framed. He
prayed for grant of bail to the applicants/accused.
3. Addl. P.G argued that during incident
two police constables namely Ismail and Asif sustained injuries; that accused
Ghulam Mustafa was arrested from the hospital in injured condition whereas,
remaining accused were arrested at the spot. Lastly, it is argued that danda
and iron rod were recovered from the place of incident. Therefore, Addl. P.G
opposed the instant bail application.
4. We have heard the learned counsel for
the parties and perused the relevant record.
5. We are inclined to grant bail to the
applicants/accused for the reasons that prima facie, it appears that it was
case of police encounter occurred in a shop and injuries sustained by PCs
Ismail and Asif are not specifically attributed to any accused. According to
case of prosecution, applicants/accused were armed with danda and lathis and
police officials had official arms and ammunitions; from the place of wardat 04
empties were collected and applicant/accused Ghulam Mustafa had sustained
firearm injury but no where it is mentioned that as to who caused firearm
injury to Ghulam Mustafa. It is the case of prosecution that incident occurred
in a shop where it is alleged that applicant/accused went to purchase
Gutka/narcotics substance, but shopkeeper has not been cited as witness, above
circumstances create doubt in the case of prosecution. Moreover, the point of
jurisdiction to try this case under the provisions of the Anti-Terrorism Act
1997 is to be determined in the light of judgment passed by Supreme court in
the case of Ghulam
Hussain and others vs. The State and others (PLD 2020 S.C 61). It is
settled principle of law that benefit of doubt can be even extended at bail
stage. Reliance is placed upon the case reported as Naveed Sattar vs. The State and others (2024 SCMR 205). Investigation has been completed and applicants/accused are no
more required for further investigation. Therefore, their further detention
will not serve any useful purpose. In any event basic rule of our criminal justice system is bail, not jail.
Moreover, applicants/accused are behind the bars since last 08
months but even charge has not been framed. There is no apprehension of
tampering with the evidence as all PWs are police officials.
6. 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. For the above stated reasons, concession of bail is
extended to applicants/accused Suleman Shah son of Sultan Shah, Sayed Hussain
Shah son of Haji Sayed Sultan, Sayed Abdul Jabbar son of Hussain Shah and
Ghulam Mustafa son of Siddique Shah, subject
to their furnishing solvent sureties in the sum of Rs.100,000/- (Rupees One Lac) each
and P.R.
bond in the like amount to the satisfaction of the trial Court.
7. 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.
JUDGE
JUDGE
Wasim
ps