IN THE HIGH COURT OF SINDH AT KARACHI
Criminal
Bail Application No.307 of 2024
Criminal
Bail Application No.320 of 2024
[ Zakir
Ali alias Dada S/o Hamza vs. The State ]
Mr. Justice Naimatullah Phulpoto
Mr. Justice Khadim Hussain Tunio
15.03.2024
M/s Saifullah Abbasi & Zahoor Ahmed, advocates for applicant
Mr. Ali Haider Saleem, Additional
Prosecutor General
IO/PI Rafiq Ahmed
-------------------------------------------------
Naimatullah Phulpoto, J.- By this order we intend to decide Criminal Bail
Applications Nos.307 and 320 of 2024,
moved by applicant/accused Zakir Ali alias Dada son
of Hamza for post-arrest bail in Crime No.274/2023 for offences under Sections 4/5 of the Explosive
Substances Act, 1908 read with Section 7 of the Anti-Terrorism Act, 1997 and Crime No.275/2023 for offence under
Section 23(1)(a) of the Sindh Arms Act, 2013, registered at P.S. Chakiwara. Prior to this, applicant/accused applied for post-arrest
bail before learned Judge, Anti-Terrorism Court-XIV, Karachi, the same was
rejected vide order dated 06.01.2024. Thereafter, applicant/accused approached
this Court for same relief.
2. Learned
advocate for applicant/accused mainly contended that false cases have been
registered against the applicant/accused; hand grenade and 9MM pistol have been
foisted upon him. In support of his submissions he relied upon the application
submitted by the mother of applicant/accused to the Hon’ble
Chief Justice Sindh on 07.11.2023, copy of said application is placed on
record, in which it is mentioned that applicant/accused was picked up by the
police on 07.11.2023 when he was returning back after attending the Court of
learned Judge, Anti-Terrorism Court-XII, Karachi. Learned counsel for
petitioner further argued that mother of applicant also filed constitution
petition regarding missing of applicant/accused against Inspector General of
Police Sindh, Director General Rangers, SSP Karachi East and SHO P.S. New Town
on 08.11.2023 and notices were issued against above named respondents. It is
further submitted that the applicant/accused is in jail for more than four
months, yet there is no progress in trial. Lastly it is argued that the rule is
bail not jail. In support of above submissions, reliance has been placed on the
case of Muhammad Noman versus the State and another
(2017 SCMR 560) and Muhammad Mansha versus The State
(1995 SCMR 1414).
3. Mr.
Ali Haider Saleem, Additional
Prosecutor General Sindh, submits that so far as the application moved by the
mother of applicant/accused to the Hon’ble Chief
Justice Sindh and filing of constitution petition by the mother of
applicant/accused are concerned that defence plea may
be moved before the trial Court. He submitted that hand grenade and 9MM pistol
were recovered from the possession of applicant/accused by police,
there is sufficient material against the applicant/accused to connect him in
the commission offence. Learned Additional Prosecutor General Sindh has opposed
the bail applications.
4. We
have heard the learned counsel for the parties and perused the relevant record.
5. It
appears that FIR No.274/2023 for offences under Sections 4/5 of Explosive
Substances Act, 1908 read with Section 7 of Anti-Terrorism Act, 1997 and Crime
No.275/2023 for offence under Section 23(1)(a) of the
Sindh Arms Act, 2013, were registered at P.S. Chakiwara
by ASI Khan Bahadur on behalf of the State, on the
relevant date, three accused persons were arrested by the police while they
going on motorcycle and from their possession, explosive substance was
recovered. Case against present applicant/accused is that he was found carrying
hand grenade and one 9MM pistol. After registration of FIRs, explosive
substance and 9MM pistol were sent to the experts and positive reports were
received. After usual investigation, challan was
submitted against the accused persons.
6. In our
considered view, a case for grant of bail to the applicant/accused is made out
for the reasons that two FIRs 274/2023 and 275/2023 were lodged on 17.11.2023
on behalf of the State at Police Station Chakiwara
but the mother of applicant/accused Mst. Bilquees had submitted application before the Hon’ble Chief Justice Sindh on 07.11.2023, true copy of the
said application is placed on record, in which it is mentioned that on
07.11.2023 her son, after attending the Court of learned Judge, Anti-Terrorism
Court-XII, Karachi was returning back along with his cousins, they were picked
up by police at 11:00 a.m. and detained them at some unknown place. Thereafter,
mother of applicant/accused filed C.P. No.D-5461/2023 before this Court against
the Police Officials and Rangers on 08.11.2023 in which it was mentioned her
son along with his cousins has been picked up by the police while, after
attending the Court of learned Judge, Anti-Terrorism Court-XII, Karachi, they
were returning back. Investigating Officer is present, we inquired from the IO
whether he interrogated about the plea raised by the mother of
applicant/accused in her application to the Hon’ble
Chief Justice Sindh so also in C. P. No.D-5461/2023 before this Court, he has no reply.
7. In the
view of above, prima facie there is some doubt in the case of prosecution. It
is settled principle of law that benefit of doubt shall be extended to the
applicant/accused even at bail stage as held 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 applicant/accused at bail stage, as the
liberty of the accused person is involved in this case.
9. Prima facie, there are no reasonable grounds for believing that the
applicant/accused has committed the alleged offences but there are sufficient
grounds for further inquiry into his guilt. Resultantly, post-arrest bail is
granted to applicant/accused Zakir Ali alias Dada
son of Hamza in FIR
No.274/2023,
registered at P.S. Chakiwara, for offences under
Sections 4/5 of the Explosive Substances Act, 1908 read with Section 7 of the
Anti-Terrorism Act, 1997, subject to furnishing solvent surety in the sum of Rs.100,000/- (Rupees one Lac) and FIR No.275/2023, registered at P.S. Chakiwara, for offence under Section 23(1)(a) of the Sindh
Arms Act, 2013, subject to furnishing solvent surety in the sum of Rs.50,000/- (Rupees Fifty Thousand) 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 cases of the applicant/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