THE HIGH COURT OF SINDH AT KARACHI

 

Criminal Bail Applications No. 1409, 1410 & 1411 of 2017

 

             Present Mr. Justice Naimatullah Phulpoto

                     Mr. Justice Abdul Malik Gaddi

 

Date of Hearing:                                            17.10.2017

 

Date of announcement of Order:                  24.10.2017

 

Applicant/accused:                                       Javed Ahmed Khan through Syed Mahmood Alam Rizvi Advocate

 

Respondent:                                                   The State through Mr. Mohammad Iqbal Awan DPG

 

O R D E R

 

NAIMATULLAH PHULPOTO, J.- Applicant/accused Javed Ahmed Khan has applied for post arrest bail in FIR 163/2017 u/s 353/324/34 PPC read with Section 7 Anti-Terrorism Act, 1997, FIR No. 164/2017 u/s 23(1)(a) of Sindh Arms Act, 2013 and FIR No. 165/2017 u/s 4/5 Explosive Substances Act, 1908, registered at Police Station Gulshan-e-Maymar, Karachi.

 

2.         Brief facts of the prosecution case are that on 18.07.2017, ASI Manzoor Baloch along with ASI Ghulam Mustafa and his subordinate staff left Police Station in Government vehicle for patrolling duty. While patrolling, when the police party reached near Karim Shah Mazar at 0100 hours, it is alleged that two persons in suspicious condition appeared on the motorcycle. It is alleged that while seeing the police mobile, accused started firing upon the police with intention to kill them. Police officials also fired with official SMGs in defence. It is alleged that one accused succeeded in driving away his motorcycle. However, police caught hold present applicant/accused. On enquiry, he disclosed his name as Javed Ahmed son of Iqbal Ahmed. On account of non-availability of the private witnesses, personal search of the applicant/accused was conducted in presence of police mashirs and 30 bore pistol No.3885 loaded with two life rounds were recovered from his possession. His further personal search was conducted and one Avan Bomb and 11 rods of charas weighing 110 grams were also recovered from him. A Mobile and cash of Rs.11500/- were also recovered. ASI through telephone called Bomb Disposal Squad. Applicant/accused disclosed the name of co-accused, who ran away as Waheed Khan son of Abdul Rasheed. Mashirnama of arrest and recovery was prepared in presence of mashirs namely ASI Ghulam Mustafa and HC Mohammad Wasim. Thereafter, accused and case property were brought at Police Station Gulshan-e-Maymar, where three separate FIRs bearing Crime No.163/2017 u/s 353/324/34 PPC read with Section 7 Anti-Terrorism Act, 1997, Crime No. 164/2017 u/s 23(1)(a) of Sindh Arms Act, 2013 and Crime No. 165/2017 u/s 4/5 Explosive Substances Act, 1908 were registered against the accused on behalf of state.

 

3.         SIO inspected place of wardat on the pointation of ASI Manzoor Baloch, recorded 161 Cr.P.C statements of the P.Ws. Bomb Disposal Squad defused bomb on 18.07.2017. Case property was sent to FSL, positive report was received. On the conclusion of the usual investigation, challan was submitted against accused under the above referred sections.

 

4.         Bail Applications were moved before the trial Court in the aforesaid crimes, learned Judge, Anti-Terrorism Court No. XIX, Karachi vide his order dated 08.09.2017, dismissed the Bail Applications, hence applicant/accused has approached this Court for the same relief. By this single order, we intend to decide Bail Applications moved in above referred crimes/cases.

 

5.         Syed Mehmood Alam Rizvi learned Advocate for the applicant/accused has contended that applicant/accused is innocent person and he has been falsely implicated in this case by the police with malafide intention and ulterior motive. It is further argued that applicant/accused is officer of District Municipal Corporation Korangi Karachi and he was arrested by law enforcing agency on 17.07.2017 at 3:10 pm from the office of Director Parks, District Municipal Corporation, Korangi Karachi. Mr. Rizvi argued that on 17.07.2017 at 5:00 pm to 7:00 pm breaking news were telecasted regarding arrest of the accused. It is argued that Director Administration, District Municipal Corporation, Korangi has issued Certificate on 24.07.2017 that applicant/accused Javed Ahmed Khan officer of District Municipal Corporation was arrested on 17.07.2017 at 3:10 pm from the office of the Director Parks, DMC Korangi. Lastly, it is argued that applicant/accused has been granted bail in the connected case/FIR bearing Crime No. 166/2017 under Section 9(b) of the CNS Act, by Special Judge, CNS-1, Karachi and case against applicant/accused requires further inquiry. In support of his contentions, reliance has been placed upon the case reported as NUSRAT ALI VS THE STATE (1997 SCMR 876).

 

6.         Mr. Mohammad Iqbal Awan, learned DPG argued that Rifle grenade and 30 bore pistol were recovered from the possession of the accused after police encounter. Learned DPG further argued that deeper appreciation of evidence is not permissible at bail stage. Lastly, it is argued that accused has committed offences, which are punishable for more than 10 years and opposed the Bail Applications.

 

7.         We have carefully heard the learned counsel for the parties and perused the relevant record. According to the case of prosecution, applicant/accused was arrested on 18.07.2017 at 0100 hours near Karim Shah Mazar, when police party was patrolling. After encounter, accused was arrested and from his possession one 30 bore pistol No. 3885 loaded with two live rounds and one Rifle grenade were recovered. Bomb Disposal Squad inspected Rifle grenade, defused and issued Clearance Certificate. 30 bore pistol was examined by the Fire Arm Expert and issued positive report. In our considered view, apparently applicant/accused was carrying Rifle grenade and 30 bore pistol at odd hours of night on motorcycle and he was arrested after police encounter. From the place of wardat 4 empties of SMGs and 2 empties of 30 bore pistol were collected by Investigation officer. Contention of the learned counsel for the applicant/accused that accused was arrested from his office by law enforcing agencies on 17.07.2017 at 3:10 pm requires deeper appreciation of evidence, which is not permissible at bail stage. Other contention of Mr. Rizvi that applicant/accused is officer of District Municipal Corporation Karachi, is also without merit, for the reasons that Article 25 of the Constitution enjoins that all citizens are equal before law and are entitled to equal protection of law. It is observed that law and order situation in Karachi is yet not ideal/normal. Offences with which accused is charged need to be discouraged. In more or less, similar circumstances, larger Bench of Honourable Supreme Court of Pakistan in an unreported order passed in Criminal Petition Nos. 266 & 267 of 2014 (re: Mohammad Adnan vs. The State) dated 02.07.2014, has held as under:

 

“The petitioner seeks bail in two FIRs bearing Nos. 854 & 855/2013 registered on 13.12.2013 at P.S CID, West Karachi. The reason why we found it necessary to issue notice to the State is noted in our previous order dated 17.06.2014. Today the Deputy Prosecutor General, Sindh has appeared and has pointed out that the occurrence took place on 13.12.2013 at 11:00 p.m. and FIR was lodged on the same day at 11:50 p.m. The petitioner Muhammad Adnan was also arrested on the same day and physical remand for seven days was obtained from the competent Magistrate on 14.12.2013. Two live hand grenades in addition to arms were recovered from the petitioner which were subsequently, defused by Bomb Disposal Squad.

 

2. The offence is punishable for a term extending ten years. Even otherwise, having such ammunition is a grave offence undermining the law and order situation in Karachi.

 

3. For the foregoing reasons, we find the impugned order to be proper. We, therefore, find no justification for interfering in the same. Consequently, these petitions are dismissed and leave to appeal is declined.”

 

8.         Contention of Mr. Rizvi learned counsel for the applicant/accused that fair investigation was not conducted by Investigating officer as I.O had not considered certificate issued by Director Administration, DMC Korangi and breaking news telecast regarding arrest of the accused, by law enforcing agency. When Mr. Rizvi was asked by us whether Certificate issued by Director Administration, DMC Korangi, dated 24.07.2017 and breaking news were produced before the Investigating agency, he replied in negative. Moreover, no malafide on the part of the investigation officer has specifically been pointed out.

 

9.         On our tentative assessment of material available on record, prima facie, there appear reasonable grounds for believing that applicant/accused has committed alleged offences punishable for more than 10 years. Applicant/accused was carrying Rifle Grenade and 30 bore pistol, such ammunition is a grave offence, undermining the law and order situation in Karachi. While respectfully relying upon the case of the Honourable Supreme Court (re: Mohammad Adnan vs. The State), no case for grant of bail to applicant/accused is made out. Consequently, Bail Applications are without merit and the same are dismissed. However, Trial Court is directed to decide the case within 02 months in accordance with law.

 

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

    

JUDGE

 

 

JUDGE