ORDER SHEET

     IN THE HIGH COURT OF SINDH, KARACHI

      

                         Cr. Bail Application  No. 28 of 2010

   Date                         Order with signature of Judge

 

For Hearing

 

03.02.2010

 

Ms Erum Khan, Advocate for the applicant

Mr. Zafar Ahmed Khan, Additional. Prosecution General for the State.

                    ------------

 

This bail application has been filed against the orders dated 02.05.2009 and 10.11.2009 passed by the learned VIIth Additional Sessions Judge, Karachi South in Sessions Case No.375 of 2008, whereby the bail applications of the applicant have been rejected.

 

2.       Briefly stated the facts of the case are that an FIR No.108/2008 was registered on 4.6.2008 at about 1315 hours at P.S. Saddar Town, Karachi, under Section 353/324/34 P.P.C. The contents of the F.I.R are reproduced for the sake of brevity and reference.

 

"Today on 04.06.2008, I, ASI Nadeem Haider, posted at Police Station Garden, Karachi, alongwith my subordinate staff consisting of PC Amjad Pervaiz Butt 18593, PC Tehzeeb-ul-Hassan 11153 and PC Abrar Ahmed 8184 through government mobile with reference to Report No.23 entered in Rozmancha of above Police Station was busy in patrolling of the area for anti crimes elements, when at about 1215 hours I reached at Orange Street, Corner Syed Rahim Shah Road, I saw that three young persons duly armed were coming from the side of Siddique Wahab Road on motorcycle, they after seeing the mobile turned out to Orange Street, I chased them in mobile to apprehend them, from whom two persons who were sitting on the rear seat of motorcycle after alighting from it open fire upon the police party with intention to kill them to deter our official duty and for save them from apprehending, on which I used to save our lives and to assured the arrest of accused persons through PC Amjad Pervaiz Butt fired two shots from government SMG and with the help of my subordinate staff I encircled them and arrested two accused persons alongwith motorcycle from whom one was firing upon us and another was riding motorcycle while the third accused was escape his good after firing upon us. I, in presence of witnesses (i) Nadeem Warsi s/o Muhammad Akbar and (ii) PC Amjad Pervaiz Butt take personal search as per procedure and recovered one 30 bore pistol vide No.1310 from the right hand of accused Adeel s/o Muhammad Saleem alongwith loaded magazine in which one bullet is in chamber while three were in magazine, on further search, I, recovered four mobile phones and one purse containing Rs.1110/-. From accused Vijay s/o Baboo Narain, I, recovered one mobile phone. The said accused persons disclosed the name of his other accomplice who fled away from the place of incident as Asif s/o not known. This act of accused falls under Section 353/324/34 PPC, as such, I, arrested the apprehend accused persons. I arrested accused Adeel under Section  13-D Arms Ordinance. I sealed recovered arms & ammunition without license after taking it in custody. I, sealed mobile phones. I, took possession of the motorcycle recovered from the possession of accused persons bearing Registration No.KDO-2749, Super Star of black colour, 70-CC, Engine No.2542451, Chassis No. MAF-308838 under Section 550 Cr.P.C as per memo. I also took possession of three-used sheath of 30 bore from the place of incident and sealed them. After returning at Police Station, I, registered case against accused persons under Section 353/324/34 PPC and handed over the investigation to SIO. Case under Section 13-D Arms Ordinance against accused Adeel is also registered separately. Remaining copies of FIR will be distributed according to rule.

                                                                                   Sd/- English

                                                                                    04.06.08."

 

 

 

3.       Charge-Sheet No.52/2008 dated 30th June 2008 was submitted before the VIIth Additional Sessions Judge Karachi South, wherein the present applicant/accused was shown under arrest.

 

4.       Learned counsel for the applicant argued that this is a false and fabricated case as the police has wrongly implicated the applicant in the alleged crime. According to the learned counsel, no private witness has been cited nor any offence except the allegation against the applicant for having fired at the police mobile, has been leveled. Learned counsel further pointed out that only police witnesses namely, Syed Nadeem Haider and Muhammad Ilyas Chana have been examined who alleged that the FIR has rightly been registered against the applicant, who is also nominated in FIR No.109/2009 under Section 13-D of Arms Ordinance. Learned counsel further argued that there is no probability of conviction of applicant as the best possible case of the prosecution could be of ineffective firing on police party. No causality or injury to any one has been alleged out of that ineffective firing. Learned counsel states that this is a case of further inquiry and applicant who is behind the bar for more than one year is entitled to bail. In support of her arguments, learned counsel has placed reliance on the case of Suleman v. The State 2004 Y.L.R 104, Karachi, wherein a Division Bench of this Court has held as under:

 

"However, it is admitted that no one was injured in the incident. It was ineffective firing by persons present on the spot. Other co-accused almost on the similar grounds has been released on bail. In the same case co-accused Muhammad Azim, Haji Nooruddin and Haji Abdul Ghafoor were allowed bail by this Court in Criminal Bail No.257 of 2000. The learned counsel referred to the judgment dated 31-5-2008 passed in Criminal Case No.24 of 2000 (The State v. Suleman under  section 13-D in Crime No.68 of 2000). By this judgment, the applicant has been acquitted by the trial Court and no appeal has been preferred against this order. Keeping in view the rule of consistency and in view of the fact that there was allegedly ineffective firing and the applicant has been acquitted by the trial Court under section 13-D, the case of the accused requires further enquiry."

 

 

5.       Learned counsel has also placed reliance on the case of Shahzad Khan v. Asghar Khan and another 2005 Y.L.R 112 Peshawar, wherein it has been held as under:

 

"In the instant case, the petitioner is alleged to have fired ineffectively on the complainant and his brother. The case of the petitioner is covered by subsection (2) of section 497, Cr.P.C and it is a case of further inquiry. Moreover, investigation in the case is complete and the petitioner is no more required for further investigation. He is in jail ever since his arrest on 12-6-2004. In such a situation, I allow this petition and order the release of petitioner on bail provided he furnishes bail bonds in a sum of Rs.3,00,000/- (Rupees three lacs) with two sureties each in the like amount to the satisfaction of Illaqa/Deputy Judicial Magistrate."

 

6.       Reliance was also placed on the case of Ghullamulah v. The State 2005 Y.L.R 20 Karachi, wherein it has been held as under:

 

"Admittedly, this case is of ineffective firing and on the basis of its peculiar facts and circumstances, applicant is admitted to bail in the sum of Rs.1,00,000/- (one lac) and P.R. bond in the like amount to the satisfaction of learned trial Court."

 

7.       On the other hand, Mr. Zafar Ahmed Khan, learned Additional Prosecutor General for the State after having gone through the FIR and the statements of P.Ws recorded in the instant case candidly concedes that this is a case of ineffective firing, hence does not seriously oppose the grant of bail.

 

8.       I have gone through the record of the case and examined the contents of the FIR as well as the evidence of P.Ws in the instant case. On the tentative assessment it appears to be a case of ineffective firing whereby no injury whatsoever has been alleged by the prosecution. Moreover, the private witness cited has not been produced inspite lapse of more than one year of proceedings nor the pistol allegedly recovered from the applicant has been sent to F.S.C for examination and report, further the I.O namely Syed Nadeem Haider during cross-examination admitted that no empty was recovered from the place of incident, which makes a case of further inquiry. I am of the view that the case law relied upon by the learned counsel for the applicant is attracted in the instant case, therefore, the applicant is entitled to bail.

 

9.       In the light of above, the applicant is granted bail subject to furnishing solvent surety  in the sum of Rs.50,000/- (Rupees Fifty Thousand) and P.R. bond in the like amount to the satisfaction of trial Court.

 

10.     Needless to observe that the observations made hereinabove are tentative in nature and shall not prejudice the merits of the case which is to be decided on the basis of evidence available in this case.

 

11.     Above are the reasons of the short order passed on 25.01.2010.

                                                                                             Judge