ORDER
SHEET
IN
THE HIGH COURT OF SINDH AT KARACHI
Criminal Bail Application No. 188 of 2014
DATE
ORDER WITH SIGNATURE(S) OF JUDGE(S)
1)
For orders on office objection and reply
of Advocate as At Flag “A”
2)
For hearing
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03.03.2014
Mr. Aamir Jamil, Advocate for the
applicant along with Applicant
Mr. Khadim Hussain Khuharo, DPG along
with Inspector Farhan of P.S. F. B. Area
Mr. Naseer Shah, Advocate for Complainant
a/w Complainant
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NAIMATULLAH PHULPOTO, J.--- Applicant/accused Khalid Noor seeks
bail in Crime No.327 of 2013 registered against him and another at P.S Rizvia
Society, Karachi, on 26.10.2013 for offences under sections 392/386/506-2/509/34
PPC, Section 25 of the Telegraph Act read with Section 7 of the Anti-Terrorism
Act, 1997.
2. Brief facts of the prosecution case as disclosed in the FIR
are that aforesaid FIR was registered on an application of complainant Mst. Ghazala Shakeel, alleging
therein that she is Acupuncture Doctor by profession and sales unstitched cloths.
It is alleged that opposite her house, co-accused Khalid Noor Mashori working
in Special Branch of Police, resides, in H.No. 1-H/3/18 Nazimabad. Said
constable threatened her of abduction as well as her children. Complainant has
stated that accused Khalid Mashori had also issued her threats of throwing acid
upon her. Accused Khalid had obtained two cheques of Rs.10,000/- each, cash of
Rs.18,000/- and Nokia Mobile Cell from her on 23rd September 2013.
It is further alleged that on 21st of Ramzan in 2013, accused Khalid
Noor along with companions had taken the husband of the complainant namely
Shakeel Ahmed to Pak Colony on a motorcycle and said accused had taken
Rs.8000/- from complainant for release of her husband. Complainant has further
stated that accused Khalid sent a number of indecent messages to her and caused
her sexual harassment. Complainant has mentioned her mobile phone numbers, on
which she received such vulgar messages. Finding no other way, aforesaid FIR
was lodged against accused Khalid and his companions. During investigation
applicant/accused Mohammad Zeeshan was arrested by the police and his cell data
and data of the principal accused Khalid Noor Mashori was collected by the
investigating officer.
2. After usual investigation, challan was submitted against
applicant/accused Khalid Noor under the above referred sections in the Court of
learned Judge, Anti-Terrorism Court No.II, Karachi, showing accused PC Khalid
Noor Mashori as absconder.
3. After grant of protective bail to applicant/accused
Khalid Noor by order dated 04.01.2007 he appeared before the trial Court and he
was granted interim pre-arrest by learned Judge, A.T.C., Karachi vide order
dated 15.01.2014, however on account of non-appearance of the applicant/accused
bail before arrest application was dismissed by the trial Court vide order
dated 16.01.2014 and warrants for his arrest were ordered to be issued.
Thereafter applicant/accused directly approached this Court and without
touching the merits of the case he was granted interim pre-arrest bail.
4. Mr. Aamir Jamil, learned advocate for
applicant/accused Khalid Noor argued that there is dispute over the business
between the parties. Applicant/accused has submitted applications to the
Inspector General of Police against complainant Ghazala Shakeel, apprehending
his false involvement in the cases. It is also argued that Civil Suit has been
filed by applicant/accused Khalid Noor in the Court of Civil Judge, Central at
Karachi on 25.04.2013. Lastly, it is argued that cheques have been arranged by
the complainant to falsely implicate him in this case.
5. Mr. Khalid Hussain Khuharo, learned
Deputy Prosecutor General Sindh, assisted by Mr. Naseer Shah, learned advocate
for the complainant, argued that complainant and her husband have fully
implicated the accused in the commission of offence. There was no business
between the parties and civil suit has been filed after registration of FIR.
Learned D.P.G. submitted that applicant/accused did not join the investigation
after grant of pre-arrest bail and he is required by Investigating Officer for
investigation. It is argued that there is documentary evidence in the shape of
cheques given to the applicant/accused and phone data connecting the
applicant/accused in this case. Lastly, it is argued that there is no element
of unjustified harassment or mala fide on the part of the prosecution against
applicant/accused. Bail application has been seriously opposed. In support of
his contentions, learned D.P.G. has replied upon the case of Malik Zafar Abbas
versus Aga Raza Abbas Qazilbash and another PLD 2002 SC 529.
6. From the perusal of the contents of FIR,
161 Cr.PC statements of the PWs and other material collected during the
investigation it appears that the applicant/accused issued threats of throwing
acid upon the complainant and abduction of her children. She has further stated
in the FIR that applicant/accused had snatched purse from her, containing cash
Rs.18,000/-, mobile Phone (Nokia X2) and other articles. PW Shakeel has stated he was abducted by the
applicant/accused and was released by him after receipt of rRs.8000/-. I.O.
during the investigation collected telephone data and text messages made by
applicant/accused Khalid Noor to the complainant. There is sufficient
material/documentary evidence against the applicant/accused to connect him in
this case. Moreover, after registration of FIR applicant/accused did not join
the investigation though he is a police constable and was well aware of the
registration of the case against him ever after grant of interim pre-arrest
bail. He did not cooperate with the investigation officer in completion of the
investigation. Contention regarding submission of the applications by the
applicant/accused against the complainant and civil suit requires deeper
appreciation of evidence, which is not permissible at the time hearing the bail
application.
7. After a careful scrutiny of the record,
we are of the considered view that the principles as enunciated by Honourable
apex Court regarding grant of pre-arrest bail have to be kept in view. There is
no element of unjust harassment, false implication or ulterior motive on the
part of the complainant or investigation officer, mala fides of intended
arrest, false implication or ulterior motive, in absence whereof the question
of grant of pre-arrest bail does not arise. After grant of pre-arrest he did
not join the investigation as stated and he was shown absconder in the Challan.
NBWs have been issued against him by the trial Court, as such, element of mala fide
is missing in this case. Extraordinary jurisdiction of anticipatory bail is
purely concession of law, which can only be granted in appropriate cases and
this Court has powers to extend concession of bail before arrest unless all the
mandatory pre-requisites and conditions laid down by Honourable Supreme Court
from time to time are satisfied. In the case of Malik Zafar Abbas versus Aga Raza
Abbas Qazilbash (PLD 2002 SC 529) it has been held as under:-
“After a careful
scrutiny of the entire record we are of the considered view that the principles
as enunciated by this Court regarding grant of pre‑arrest bail have not
been kept in view by the learned Sessions Judge. The case was got registered by
Federal Government Employees Housing Foundation which prima facie appears to be
bona fide as an mount of Rs.37.8 million was handed over to the respondent who
failed to honour his commitment and neither the land was made available nor the
said amount returned. There is no element of unjustified harassment, false
implication or ulterior motive either on part of prosecution or adversaries
concerned, malal fides of intended arrest, false implication or ulterior motive
in absence whereof the question of grant of pre‑arrest bail does not
arise.”
8. Upshot of the above discussion is that
prima facie a case is made out against the applicant/accused Khalid Noor to
connect him in this case, no case for grant of pre-arrest bail is made out.
Thus, bail before arrest moved on behalf of applicant/accused Khalid Noor is
hereby dismissed. Interim pre-arrest bail already granted to the
applicant/accused is hereby recalled.
9. Needless to mention here that the
observations made herein above are tentative in nature and the trial Court
shall not be influenced by the observations made in this order while deciding
the case of the applicant/accused on merits.
JUDGE
JUDGE
Gulsher/PA