ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Cr. Bail Application No.679 of 2010. _____________________________________________________
Date Order with signature of Judge
1. For orders on M.A. No.3500/10
2. For hearing
.09.2010.
Mr. Muhammad Zaki Zaidi, Advocate for the Applicant
Mr.Zafar Ahmed Khan, APG
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Being aggrieved by the orders dated 13.03.2010 passed by the learned IInd Additional District and Session Judge, Karachi (South) in Crl. Session Case No.74/2010 respectively, whereby the second bail application of the accused has been dismissed. It is inter-alia contended by the learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the instant crime by the police on the basis of surmises and conjuncture. The facts relevant for the disposal of the instant bail application as stated in the FIR reads as follows:-
“On 03.01.2010 I received an unknown call on mobile phone from the number 0322-6034147 who demanded money. I dropped the call by refusing. Thereafter who threatened me through SMS that you will face the consequences after one and two days. After word I informed the CPLC and SIO deputed constable Sajid Mehmood as a gunman for my protection. On January 5, 2010 I was coming towards my home from my office at about 5.30 or about 6.00 P.M. I was with my gunman constable Sajid and Laeeq Sajjad Butt in my Car No.APU-032 Maker Vits when I reached in front of the Forum Shopping Centre then due to rush suddenly two men carrying pistol in their hands came in front of the driving seat. One of the man pointed out his pistol towards me and ordered me to open the door and the other man fired bullet on my car with an intention to kill us due to which right side of the back tire of my car became bursed and glass of the vehicle was also broken. In my company guard constable Sajid Mehmood made counter firing to save our and his lives due to two persons of the attackers their names were not disclosed fell down at the spot due receiving bullet, from their hands police recovered pistol at the spot and during this tenure their companion made his escape good by making firing. Now I have come for report. My claim is against three unknown and unresident persons from them on mobile phone through SMS they issued threats and for killing me and my companions for killing purpose they made firing. Action be taken. Heard report found it correct.”
Per learned counsel, the two accused persons namely Nisar Khan and Saleem Jan died at the spot with the firing of the police party, whereas the present applicant was subsequently arrested in injured condition from the hospital. Per learned counsel, the applicant/accused is innocent and has been falsely implicated as he was merely passer bye, who received the bullet injuries on account of indiscrete firing of police. Learned counsel has also placed on record a copy of order passed by IInd ADJ, Karachi South in Session Case No.74/10, whereby co-accused namely Shams-ul-Haq arrested in the instant FIR No.10/2010 has been granted bail.
It has been further contended by the learned counsel for the applicant that in the FIR three unknown persons have been nominated, whereas police has involved four persons in the instant crime. While summing up the arguments, the learned counsel for the applicant argued that the applicant has not been nominated in the FIR, no recovery has been affected from the person, the complainant or the eye witnesses do not identify the applicant, nor identification parade has been made. It is contended that there were three persons who were nominated in the FIR, whereas prosecution has nominated four persons including the present applicant who was arrested on 22.01.2010 from Jinnah Hospital by the police and have been falsely implicated in the instant crime. The learned counsel has further argued that the attempt of the prosecution of involving the applicant in the instant crime is also frivolous and vague as neither any mobile nor any sim in the name of the applicant has been recovered from the present applicant through which the applicant has allegedly contacted with co-accused namely Nisar Khan and Saleem Jan. Learned counsel concluded that this is a frivolous and baseless case which requires further inquiry hence requested that the applicant may be enlarged on bail on furnishing surety. In support of his arguments he has placed reliance on the following cases:-
1. Syed Shahzaib Kamal v. The State 2008 P. Cr. L.J. 1606
2. Ashiq Muhammad v. The State 2010 P. Cr. L.J. 475
Conversely, the learned APG has opposed the instant bail application on the ground that the applicant has received bullet injuries on the date of incident. It has been further contended that there is mention of the third person in the FIR who escaped on the Motorcycle from the place of incident after exchange of firing and there is likely hood that the present applicant/accused is the same person who has admittedly received the bullet injury and has been arrested on his discharge from Hospital. Learned APG has also referred to the investigation conducted so far by the I.O to show that the present applicant/accused was in contact on mobile with the accused persons, who died on the spot.
I have heard the arguments of both the learned counsel and perused the record. Admittedly, the applicant has not been nominated in the FIR by the complainant nor any specific role regarding the alleged and charge under Section 324/34 PPC against the applicant finds mention in the FIR. No recovery has been affected from the applicant/accused. Neither the complainant nor any other eye witness has identified the applicant/accused. None of the prosecution witness appears to have implicated the applicant/accused in the instant crime, however, the investigation officer on the basis of some alleged mobile contacts with accused persons namely Nisar Khan and Saleem Jan, has included the name of the applicant in the challan. On perusal of the police papers, it appears that no recovery of the mobile or sim in the name of the applicant/accused has been shown.
In view of hereinabove facts and on tentative assessment of the record I am of the view that this is a case of further inquiry and the direct role of the applicant/accused in the alleged crime also appears to be remote and doubtful.
Keeping in view the above facts, the applicant is admitted to bail subject to furnishing surety in the sum of Rs.200,000/- with P.R. Bond in the like amount to the satisfaction of the trial Court.
It is clarified that the observations made hereinabove are tentative in nature and the trial Court shall not be prejudiced by any such observation, and shall decide the cases of the applicant/accused strictly in accordance with law and on the basis of evidence adduced by the parties. It is further clarified that if the applicant/accused misuses the concession of bail the trial Court shall be at liberty to proceed in accordance with law.
Karachi. J U D G E
Dated .09.2010