ORDER SHEET
IN THE HIGH COURT OF SINDH
AT KARACHI
Criminal
Bail Applications Nos.175, 81 and 261 of 2014
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DATE ORDER WITH SIGNATURE(S) OF
JUDGE(S)
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For
hearing
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26.02.2014
Mr. Muhammad Tariq, Advocate for
Applicant (in Cr. BA No.175/2014)
Mr. Abdul Wahab
Baloch, Advocate for Applicant (in
Cr BA. No.81/ 2014)
Mr. Amir Ali Shah, Advocate for
Applicant (in Cr. B.A. No.261/2014)
Mr. Khadim
Hussain Khuharo, D.P.G.
along with IO/IP Muhammad Hussain Chandio
of P.S. Sachal
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By this single order we intend to
dispose of aforesaid bail applications moved on behalf of the
Applicants/accused Ishaque son of Muhammad Sadiq, Ghulam Qadir
Gabol S/o Aachar and Danish
son of Muhammad Iqbal Memon,
arising out of Crime No.257/2013 registered at P.S. Sachal
on 20.05.2013 under Sessions 147/148/149/353/324/34 PPC and Section 7 of the
Anti-Terrorism Act, 1997.
Brief facts of the prosecution as
disclosed in FIR are that on 20.05.2013 ASI Fazal
Ahmad along with his subordinate staff was performing patrolling duty in the
area. At 1045 hours police party reached at Aziz Bhatti Park near Johar Complex.
It is alleged that 50/60 persons armed with lathies,
sticks and stones under leadership of one Aijaz Samtio belonging to the National Movement Party were
protesting and pelting stones on the vehicles on the road, mob had got the
shops closed and road was blocked. ASI Fazal Ahmed gave
such information to the concerned SHO and said SHO along with subordinate staff
reached at place of incident and encircled the persons who were
protesting/creating hindrance on the road. It is alleged that accused persons
fired upon the police party with intention to kill and in such firing SHO
received firearm injury on his back side. Police also fired in the self defence.
Thereafter, some accused were apprehended. On the inquiry they disclosed their
names as Gulshan son of Muhammad, Ishaque
son of Muhammad Sadiq, Doda
Khan son of Liaquat and
Tariq son of Maroof Abdul Ghaffar.
It is alleged that Aijaz Samtio,
who was leading the mob, succeeded in running away from the scene of occurrence
in his car bearing No.AYB-822. Personal search of accused Gulshan
was conducted by SHO in presence of mashirs, one 30 bore pistol without number
and three live bullets were recovered from his possession and he has no license
for weapon carried by him. Personal search of accused Ashiq
son of Sadiq was also conducted, 30 bore pistol,
without license was recovered from him as well as two live bullets. Apprehended
accused during interrogation disclosed the names of the co-accused who
succeeded in running away, they were Imam Bux son of Ghulam Hussain, Hajan son of Haji Ali Muhammad Chandio,
Qadir Gabol, Ghulam Rasool
Sodar, Aijaz Samtio son of Muhammad Mithal, Sher Jan Khoso, Ramzan Khoso, Javed
Bhatti and Raees Memon. Police searched Car bearing NO.AYB-822. One shopping
bag containing 87 live bullets of SMG were recovered from it. From the search
of Alto VXR 11 live bullets of 9mm pistol, 12 live bullets of 30 bore and 15
live bullets of 12 bore pistol were recovered. Accused were arrested,
mashirnama of arrest and recovery was prepared in presence of mashirs.
Thereafter, accused and case property were brought to the police station,
where, ASI Fazal Ahmed lodged FIR against the accused
on behalf of the State. It was recorded vide crime No.257/2013 under Sections 324,
354, 147, 148, 149 PPC and 7 Anti-Terrorism Act, 1997. Separate FIRs under
Section 23(i)(a) Sindh Arms Act 2013 were lodged
against accused Ishaq and others on behalf of State.
After usual investigation challan was
submitted against the accused in the main Crime under Sections 324, 323, 147,
148, 149 PPC read with Section 7 of the Anti-Terrorism Act, 1997 and under Section
23(i)(a) of the Sindh Arms Act, 2013.
Accused Ishaq,
Danish and Ghulam Qadir Gabol moved separate bail after arrest applications in
Crime No.257/2013, the same were rejected by the learned Judge, Anti-Terrorism-I
Karachi vide order dated 01.11.2013 and 01.01.2014.
M/s. Muhammad Tariq, Abdul Wahab Baloch and Syed Amir Ali
Shah Jillani, learned Advocates for the Applicants, contended
that despite firing with the sophisticated weapons from both the sides no one
received injury except one SHO on his backside. It is argued that police has
involved more than 50 accused persons in this case for mala fide reasons and
prosecution case is highly doubtful. It is further argued that case has already
been challaned there is no question of tampering with
the prosecution evidence. It is contented that no empty was recovered from the
place of wardat though there was heavy firing.
In support of their contention reliance has been placed upon the case of
RAB NAWAZ versus THE STATE (1990 SCMR 1085).
Mr. Khadim Hussain, Deputy Prosecutor
General Sindh, appearing behalf of the State, argued that the names of the
applicants/accused transpired in the FIR, SHO has received injury in the
incident, unlicensed weapons have been recovered from the possession of the
accused, case is a fresh one, however, he has pointed out that no empty was
collected from the place of wardat and weapons have not been sent to the
Ballistic Expert. He has halfheartedly opposed the bail applications.
We have carefully heard the learned
counsel for the parties and perused the record.
In our considered view, prima facie a
case for grant of bail to the applicants/accused is made out for the reasons
that despite cross-firing no one has received firearm injury except one injury
to the SHO on his back. From the place of wardat no empty was collected. It is
not clear that out of 50/60 accused persons who had fired upon the SHO. In the
circumstances of the case, whether accused intentionally fired upon police
party, yet it is to be determined at trial. All the PWs are police officials,
there is no question of tampering with the evidence, weapons
recovered from the accused have not been sent to the Ballistic Expert. Rightly
reliance has been placed upon the above cited authority in which Honourable
Supreme Court has been pleased to observed as under:-
“The injury on the
head of Iftikhar Ahmad Constable is simple, whereas the other two injuries on
the injured witnesses have not been explained in the F.I.R. The contention that
Abdul Hameed Bajwa,
Inspector/S.H.O., Police Station Miana Gondal, bore grudge against the petitioner for having made
a statement against him before the Additional Superintendent of Police on 23rd
August, 1989, is not without significance. In this background and in view of
the absence of any bullet injury, the fact whether the petitioner did
intentionally fire at the police party, but was unsuccessful to hit anybody,
because the bullet missed, or the case has been padded by the inclusion of this
false firing, assumes prominence and since this matter cannot be determined,
till proper evidence is recorded in the case, we would, taking all
circumstances into consideration, allow bail to the petitioner.”
For the above stated reasons, while
relying upon the above cited authority, we hold that case cannot be determined
against the applicants/accused till evidence is recorded by the trial Court.
Prima facie, case against applicants/accused requires further inquiry.
Therefore, concession of the bail is extended to the Applicants/accused,
namely, Ishaque son of Muhammad Sadiq,
Ghulam Qadir Gabol S/o Aachar and Danish son
of Muhammad Iqbal Memon, in
the sum of Rs.100,000/- each and PR Bond in the like
amount to the satisfaction of the trial Court. However, applicant/accused Ishaq shall be admitted to bail subject to his furnished
surety in the sum Rs.200,000/- and P.R. Bond in the
like amount to the satisfaction of the trial Court.
Needless,
to mention here that the observations made hereinabove are tentative in nature
and would not influence trial Court while deciding the case of the
applicants/accused.
JUDGE
JUDGE
Gulsher/PA