ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Cr. Bail Application No.1458 and 1459 of 2017

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Date Order with signature(s) of Judge(s)

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Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Maalik Gadi

Azam alias Pasha ………….…….versus……………………….The State

O R D E R

28.11.2017

Syed Shahid Mushtaq, advocate for applicant

Mr. Muhammad Iqbal Awan, D.P.G. a/w IO/PI Safdar

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Applicant/accused Azam alias Pasha has applied for post arrest bail in F.I.Rs. Nos.72/2017, under sections 353, 324, 34, PPC read with section 7 of the Anti-Terrorism Act, 1997 and 75/2017 under section 23(1)(a) of the Sindh Arms Act, 2013, registered at P.S. CTD Sindh, Karachi East.

2. Brief facts of the prosecution case as disclosed in the F.I.R. are that there was police encounter on 18.05.2017, near University Road, Karachi, Old Quetta Hotel bus stand. It is alleged that police party headed by SIP Muhammad Aslam Qureshi of CTD left police station along with his subordinate staff on prior information regarding availability of accused persons. When they reached near old Quetta bus stand where it is alleged that police found two persons standing there. Police surrounded them but both accused started firing upon the police with intention to kill them. Police party also fired from the official weapons. Thereafter, it is alleged that both accused were arrested. Due to non-availability of the private witnesses PCs Muhammad Akmal Awan and Waqar Ahmed were made mashirs. Personal search of accused Waseem Khan alias Maya was conducted. From his possession one KK without number and one 30 bore pistol so also hand grenade were recovered. From the possession of the applicant/accused, it is alleged that police recovered 30 bore pistol loaded. Accused have no licenses for the weapons carried by them. After arrest both the accused along with case property were brought to police station CTD Sindh Karachi East where F.I.Rs. were registered against them under sections 353, 324, 34, read with section 7 of the Anti-Terrorism Act, 1997, Sections 4 and 5 of the Explosive Substances Act, 1908 and section 23(1)(a) of the Sindh Arms Act, 2013 on behalf of the State.

3. After usual investigation, challan was submitted against the accused before the learned Judge, Anti-Terrorism Court-XI, Karachi in the above referred sections.

4. Bail applications were moved on behalf of the applicant/accused before the trial, both the applications were dismissed by single order dated 01.08.2017. Thereafter, applicant/accused approached this Court.

5. Learned advocate for applicant/accused mainly contended that in an encounter with sophisticated weapons not a single injury was caused to either party. It is also argued that no private persons of the locality was associated to witness the recovery. It is further argued that brother of the applicant/accused had moved application before the S.H.O. P.S. Jamshed Quarters, Karachi on 08.05.2017 regarding picking up of his brother from his house by some unknown persons. Lastly, it is contended that case against applicant/accused requires further inquiry. In support of his contentions, learned counsel for the applicant/accused relied upon the case of MUHARRAM versus THE STATE (2012 M L D 599).

6. Mr. Muhammad Iqbal Awan, D.P.G. opposed the bail application mainly on the ground that case is proceeded before the trial court and the evidence of material witnesses has been recorded, however, it is admitted by the learned D.P.G. that it was the case of ineffective firing. No specific roll was assigned to the applicant/accused in the commission of offence.

7. After hearing the learned counsel for the parties, we have come to the conclusion that no specific role has been assigned to the applicant/accused except ineffective firing upon the police party. It may be mentioned here that according to the case of the prosecution there was police encounter but during encounter not a single injury was caused to either party, even no scratch was caused. Counsel for the applicant/accused as referred to the application submitted by the brother of the applicant/accused to S.H.O. P.S. Jamshed Quarters, Karachi on 08.05.2017 regarding picking up on his brother from the house. Investigation Officer is present in Court, he admits that he did not interrogate / investigate regarding the application submitted by the brother of the Assistant Attorney General to S.H.O. P.S. Jamshed Quarers, Karachi. In these circumstances, case against applicant/accused requires further inquiry. Rightly reliance has been placed upon the case of MUHARRAM (supra), relevant portion is reproduced as under:

“6. After hearing the arguments from both sides, we have reached to the conclusion that no specific role has been assigned to the present applicant except that he was arrested and one empty T.T. pistol 30 bore was recovered from his possession. It is also a fact that at the place of incident, no blood drops were found and only two empties of SMG rifle were recovered. Nothing has been shown that any empty of KK or TT pistol were found at the place of incident. It is also an important aspect to look into that according to F.I.R., accused alighted firing from both sides of car, but according to F.I.R., only rear glass/screen of Mehran car was broken and no bullet symbols on the car were found which is quite astonishing, especially in the circumstances when the allegation against the accused in the F.I.R. is that they started firing from both sides of car, police in defence had also started firing and one police official was injured and one accused was also injured, but Mehran car was not damaged but only its rear glass/screen was broken and no other bullet symbols were found. In the F.I.R., complainant stated that he fired 35 bullets from his official SMG rifle but only two empties of SMG rifle were recovered from the place of incident. All such questions cast doubts and it is well settled that even at the bail stage, benefit of doubt if any may be extended to the accused.

7. After tentative assessment of the material available on record, we are of the firm view that the case of the applicant requires further inquiry. The case could only fall within the scope of further inquiry under section 497, Cr.PC if the court finds that on the material before it no reasonable ground exists for believing that the accused is guilty of a non-bailable offence. The condition laid down in clause (2) of section 497, Cr.PC denotes the existence of sufficient grounds for further inquiry into the guilt of accused which means that the question should be such which has nexus with the result of the case and may show that accused is not guilty of the offence with which is charged.”

8. In view of the above, from the tentative assessment of the material available on record, we are of the considered view that the case against the applicant/accused requires further inquiry as contemplated under section 497(2), Cr.PC. Concession of bail is extended to applicant/accused Azam alias Pasha son of Jahanzaib, subject to his furnishing solvent surety in the sum of Rs.100,000/- (rupees one hundred thousand) in each case and P.R. bonds in the like amount to the satisfaction of the trial court.

9. Needless to mention here that the observations made hereinabove are tentative in nature and the trial Court shall not be influenced by the same while deciding the case on merits.

J U D G E

Gulsher/PS