O R D E R S H E E T
IN THE HIGH COURT OF SINDH AT KARACHI
Crl. Bail Application No.1170 of 2009
ORDER WITH THE SIGNATURE OF THE JUDGE
1. For order on M.A. No.4191/09
2. For hearing.
20-11-2009:
Mr. Abdus Sami, Advocate for the Applicant.
Mr. Abdullah Rajput, D.P.G. alongwith I/O Hamdullah, East Zone.
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1. Granted subject to all just exceptions.
2. This bail application under Section 497 Cr. P.C. is filed by the applicant/accused feeling aggrieved and dis-satisfied with the impugned order passed by the learned IInd Additional Sessions Judge, Malir at Karachi, in Session Case No.250/2007 dated 16.09.2009 in FIR No.69/2007 under Section 147, 148, 149, 353/324 PPC. As per contents of FIR on 23.05.2007 at about 10:00 hours the police party was on illaqa gasht for prevention of crime. On information during gasht by Mukhbar-e-khas that some abscondors were present in gali of Anso Goth. On such information the police party reached at the place where according to police party narcotics dealer Aftan Ahmed @ Taboo, S/O Abdul Hassan with other companion namely Abdul Samad s/o Sahir Baloch, Shahjahan @ Baba s/o Ali Muhammad @ Lala, Arif @ Mama s/o Ghulam Hussain, Akber @ Kakra s/o Ellahi Bux, Sohail @ Dada s/o Abdullah, Fida Hussain @ Fido s/o Muhammad Ishaque, Haji Hussain s/o not known, were present, duly armed, standing in the Gali. ASI Ghulam Jafar tried to catch them with the help of his companion but they opened fire from their respective weapons upon the police party, who also started firing from their SMG but the accused ran away in the gali by firing, hence a case under Section 147, 148, 149, 353, 324 PPC was registered against the accused persons.
Challan No.50/2007 was submitted on 11.06.2007 before the learned VI Judicial Magistrate, Malir, Karachi, wherein no arrest of the accused were shown. The applicant/accused was apprehended on 13.08.2009 and is presently in Jail custody. The learned counsel for the applicant has argued that the FIR is bogus as the incidence mentioned in the FIR never took place and the accused is falsely implicated in such FIR. According to the learned counsel neither the accused was arrested at the place of incidence nor there is any eye witness or identification about the occurrence of incident or the involvement of accused in the alleged crime. It is further argued that offences under Sections 147, 148, 149 193 & 353 of PPC are bailable whereas the prosecution has failed to establish their case under Section 324 PPC as neither anybody was injured in the alleged incident nor any weapon or empties of any kind were recovered from the accused. According to the learned counsel the instant case besides being a false, is a case of further enquiry under Section 497 (2) Cr. P.C. It was prayed that the accused may be enlarged on bail.
Conversely the learned APG who is present alongwith I/O opposes the grant of bail. According to APG the accused is involved in as many as 08 cases including the present one and has also remained fugitive from law for a period of about 2 years 3 months and 24 days, cannot be granted any concession of bail by this Court. The I/O present in Court has filed a statement showing the details of the cases against the present accused/applicant.
From the perusal of such report dated 17.11.2009 it transpired that in cases mentioned at Sr. No.1, 2 & 3 in FIR No.02/04, 145/04 registered under Section 3/4 of the Anti Narcotics Act and FIR NO.146/05 registered under Section 6/9/A of the Anti-Narcotics Act, at P.S. Malir City, Karachi, the applicant/accused is shown as fugitive from law. However, it is conceded by the APG as well as I/O that in none of such cases including the present one the proceeding under Section 87 & 88 have been initiated against the accused/applicant. In FIR Nos.37/06, 53/07, 54/07 mentioned at Sr. Nos.4, 5 & 6 of such report respectively registered under Section 324, 353/34 PPC, at P.S. Malir City the applicant/accused has been acquitted in above mentioned cases whereas in case mentioned at sr. No.8 in FIR No.139/08 registered under Section 6/9/A the applicant/accused has been granted bail by the Court of VI Judicial Magistrate, Malir, Karachi. According to learned APG any absconder or fugitive from law cannot be allowed the concession of bail in this regard. He has placed reliance in the reported cases 1998 SCMR 190 (Sher Ali alias Sheri Vs. the State, PLD 1985 SC 402 (Awal Gul vs. Zawar Khan and others). To this submission by the learned APG the learned counsel for the applicant/accused seriously opposes the contention of learned APG and argued that the cases relied by the learned APG are distinguishable and not attracted to the facts of this case. According to him the present applicant is neither absconder nor a fugitive from law as he has no knowledge of registration of FIRs against him in which he has allegedly shown as accused. It has been further argued that no Court has declared him as absconder in terms of Section 87 and 88 Cr. P.C. He has relied upon following judgments to establish that assuming for the sake of argument treating the applicant/accused as fugitive from law/absconder then this fact alone will not dis-entitle him from grant of bail on merits. Secondly mere involvement of accused in number of cases, as alleged by the prosecution, will also not dis-entitle the applicant/accused from grant of bail on merits.
1) 2001 SCMR 291 Mitho Pitafi vs. the State
2) 1998 P.Cr. L.J. 821 Rahim alias Rahmaq and other vs. the State
3) 1997 SCMR 412 Muhammad Rafiq vs. the State
4) 2004 P. Cr. L.J. 1851 Shahzad alias Mir vs. the State.
I have heard both the learned counsel and perused the record, as well the case law relied upon by both the parties.
The instant FIR has been registered against the accused applicant under sections 147, 148, 149, 353/324 PPC. Sections 147, 148, 149 and 353 are bailable offences, whereas section 324 is not bailable. From the perusal of the contents of FIR it appears that ingredients of section 324 are missing as no specific role about the incident is attributed directly to the applicant accused nor there is any mention of the weapon from which the accused allegedly open fired neither there is any recovery of alleged weapon from the accused, no independent eyewitness has been shown in the FIR except police party nor there is any injury caused to any person. It is, therefore, clearly a case of further inquiry.
In the reported judgment 2004 P.Cr.L.J 1851 Shahzad alias Meer v. The State, it has been held as under:
"The fact remains that no injury to injured Shahzad is ascribed to him. He has been ascribed ineffective firing at the scene of occurrence. The motive is also not directly ascribed to him. Admittedly, no crime weapon was recovered from him. It is, therefore, yet to be seen that if he can ultimately be held for the alleged offence or not. His case, therefore, is covered subsection (2) of section 497 Cr.P.C requiring further inquiry into his guilt."
In another judgment reported in 1998 P.Cr. L. J 821 Rahim alias Rahmak and another, it has been held as under:
"The learned State Counsel has opposed the grant of bail and contended that accused is a hardened, desperate and dangerous criminal and has further submitted that 11 criminal cases are pending against him. It is cardinal principle of criminal jurisprudence that until and unless guilt is proved man is innocent, mere registration of a number of cases against the accused without conviction is no ground for withholding the grant of bail on the ground of statutory delay particularly when he is not a previous convict."
In another cited reported case 1997 SCMR 412 Muhammad Rafique v. The State, Divisional Bench of the Hon'ble Supreme Court has held as under:
"Fact that the petitioner is accused in a number of cases of robbery, is not sufficient to deprive him of his liberty. It has not come on record, as to, why identification test of the petitioner through eye-witnesses was not held when his name did not appear in the FIR. Mere production by the petitioner before police of some cash alleged to have been obtained by robbery, in absence of any other evidence. In this respect the observations made in the case of Ishaq Masih v. The State (1993 SCMR 1322) are relevant."
As regards allegation of absconsion it is yet to be established as to whether the accused has knowingly remained fugitive from law or absconder particularly when the accused was arrested in four other cases mentioned herein above out of which in three of such cases accused has been acquitted, whereas on fourth he has been granted bail. Moreover, in the recent reported case 2009 SCMR 299 Mitho Pitafi v. The State, the Hon'ble Supreme Court has held as under:
"According to F.I.R, neither any role has been attributed to the petitioner nor his presence has been shown at the time of occurrence. Vide order, dated 18.2.2002, co-accused namely Jam Patafi has been released on bail by the learned trial Court but the concession of bail was declined to the petitioner on the ground that he was fugitive from law. Learned High Court of Sindh as well as learned trial Court has rejected the bail of petitioner on account of absconsion and not on merit. It is well-settled principle of law that bail can be granted if an accused has good case for bail on merit and mere absconsion would not come in way while granting the bail. We are, prima facie, of the view that the learned High Court has not appreciated the facts and circumstances of the case in its true perspective while declining bail to the petitioner."
. As regards case law cited by the learned Assistant Prosecutor General, there can be no cavil to the proposition of law propounded by the Apex Court. However, the facts of this case are distinguishable hence the ratio of such judgments is not attracted in this case.
In view of hereinabove, I am inclined to grant bail to the accused in the sum of Rs.1,00,000/- and P.R. bound in the like amount to the satisfaction of the trial Court.
However, it is clarified that observations made in this order are tentative in nature and will not affect the merits of the case which shall be examined strictly in accordance with law and on the basis of evidence on record. It is further clarified that if the accused misuses the concession of bail, the trial Court is at liberty to proceed against him in accordance with law.
J U D G E
Nadeeem