ORDER SHEET

 

IN THE HIGH COURT OF SINDH, KARACHI

Cr. Bail Application Nos.852 & 853 of 2010. _____________________________________________________

Date                             Order with signature of Judge

 

For hearing

 

     -09-2010

 

Mr. Raza Muhammad Raza, Advocate for the Applicant

Mr. Abdullah Rajput, A.P.G.

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            Being aggrieved and dis-satisfied with the combined order dated 11-8-2010 passed by District and Sessions Judge (South) Karachi, whereby two bail applications moved by the applicant/accused in F.I.R No.227/2010 registered under Section 353, 324 and 34/PPC and F.I.R No.228/2010 registered under Section 13(d) of Arms Ordinance at P.S. Kalakot, Lyari Town, Karachi, have been dismissed. The applicant/accused has preferred these two bail applications before this Court for bail.

I intend to dispose of these two bail applications with the common order.

2.         Brief facts relevant for the purposes of disposal of the instant bail applications are that on 13.7.2010 SHO/P.I Malik Muhammad Saleem of Kalakot Police Station- Lyari Town, Karachi lodged F.I.R No.227/2010 according to which the incident alleged was shown resulted on the very day in between 10:30 to 10:40 hours. According to complainant on the fateful day he alongwith ASI Khadim Hussain, H.C. Azam, P.C Muhammad, P.C. Muhammad Taj, P.C. Qaiser Mehmood, P.C Sajid Hussain, driver P.C Saleem Qaiser and was patrolling when he noticed three persons riding on motor cycle 125 who were suspected and so were signaled to stop and it is alleged that the said accused attempted to fled-away towards Faqir Muhammad Durra Khan Road, who were chased and it is alleged that the said accused seeing the police party coming resorted to firing upon the police party with the fire-arms in their possession and with intention to kill and from the side of police too firing was made in defence and one of the culprits became injured who received fire-shot injury in his right leg, whereas his two companions were shown fled-away on motor cycle. The name of accused/applicant came to light to be Amjad Ali s/o Hayat Gul who was arrested and he was found holding Kalashnikov bearing No.1954-0M7750 with a loaded magazine containing 16 rounds whereas one bullet was loaded in chamber and was also found in possession unlicensed pistol of 30 bore without number loaded with five rounds in magazine, therefore, complainant SHO lodged two separate F.I.Rs one for offence under sections 353, 324 & 34 PPC and the other under section 13(d) Arms Ordinance. The accused/applicant being injured was sent Civil Hospital for treatment of the injury received by him.

3.         The applicant was arrested at the spot and was confined to jail however on account of firearm injury on his leg, he was operated and he is still under treatment at Civil Hospital in Jail Ward Bed No.24. Learned counsel for the applicant at the very outset has contended that since no proper treatment was given by jail authorities the leg operation of the applicant/accused has not been successful and his leg is in seriously bad condition and there is likelihood that if proper treatment is not given the applicant/accused will loss his leg. To this submission of learned counsel this Court vide order dated 7.9.2010 directed the Superintendent Civil Hospital Jail Ward to submit report about the treatment given to the applicant. Pursuant to such directions, the Chief Medical Officer, District Jail Malir submitted his report intimating that the applicant/accused Amjad Ali son of  Hayyat Gul was admitted to Jail Hospital on 15.7.2010 however because non-availability of proper treatment he was referred to Civil Hospital Karachi vide Report No.174 dated 19.7.2010, where he was admitted to Orthopedics Ward of Civil Hospital Karachi, and still admitted in the said Hospital for further treatment. No report from the Office of Medical Superintendent, Civil Hospital Jail Ward has been received so far. Learned counsel for the applicant/accused states that the applicant/accused having no previous history, is innocent and has been falsely implicated in the instant crime by police in order to save their skin from the charges of robbing the applicant/accused of Rs.1,50,000/-, who had come from Turbat to Karachi to make purchases and on the date of alleged incidence was traveling in a taxi when he was intercepted by the police party for checking. Per learned counsel, there is no eye-witness of the alleged incidence nor any of the police party received any firearm injury during the alleged encounter, nor the same has been alleged as such in the F.I.R. Per learned counsel, recovery of Kalashnikov and pistol has been foist upon the applicant/accused who is innocent. Moreover,  no private witnesses have been cited as witness by the prosecution, hence there is violation of section 103 Cr.P.C. Per learned counsel, challan in the instant case has also been submitted on 16.8.2010, which is beyond the prescribed period. The learned counsel further submitted that there is no possibility of conviction of the present applicant/accused in the instant crime who has been  falsely implicated in the instant crime. In order to avoid and escape prosecution on having robbed the applicant/accused of huge amount of Rs.1,50,000/-. Per learned counsel, even on perusal of the contents of F.I.R it is manifest that the offences alleged in the instant crime are not attracted as neither there is any complaint nor victim injured of alleged crime. Per learned counsel, it is a case of further inquiry, moreover medical ground is equally valid for the purposes of seeking bail at this stage. In support of his contention, learned counsel has placed reliance on the following judgments.

1.         Sikander Vs. The State 1992 P. Cr.LJ 97

2.         Tariq Bashir and 5 others Vs. The State PLD 1995 SC 34

3.         Muhammad Mubarak Vs. The State 1998 P.Cr.L J 648          

4.         Muhammad Hussain alias Tedi Vs. State P.L.J 1998 (Criminal) Lah 659

 

5.         Amir Hayat Vs. The State 1999 P.Cr.L. J 1529

6.         Arshad & others Vs. The State 2002 M.L.D 1472       

7.         Mian Abdul Manan Vs. The State 2005 P.Cr.L.J 89    

 

4.         Conversely, the learned A.P.G has opposed the grant of bail on the ground that the applicant/accused was arrested at the spot and recovery of unlicensed arm kept with an intention to commit an offence has been affected. Learned A.P.G further submitted that the applicant/accused has been specifically nominated in the F.I.R and role has been assigned and recovery of arms has been made from his possession hence he is not entitled to bail at this stage.

5.         I have heard the arguments of the learned counsel for the applicant/accused as well as learned A.P.G and perused the record. It appears that except police officials, there is no private eye-witness of the alleged incidence nor any private witness has been associated in the mashirnama. It also appears that there is no victim of the alleged offence nor any police official has received any firearm injury. No explanation of non-associating the private mashir of recovery has been given which can not be taken lightly. Reference in this regard is made to the case of Sikandar Vs. The State 1992 P.Cr.L J 97 and Muhammad Mubarak Vs. The State 1998 P.Cr. L J 648.

6.         On tentative assessment of the record, the allegation of firing at police party, where no one has received any injury, can be considered as a case of ineffective firing, whereas absence of independent private witnesses of the alleged incidence and recovery, makes the prosecution case doubtful which requires further inquiry. Keeping in view hereinabove facts and the dictum laid down in the case of Tariq Bashir and others v. The State P.L.D 1995 SC 34, I am of the view that the applicant/accused has made out a case for grant of bail at this stage. Accordingly, the applicant/accused is admitted to bail subject to furnishing surety in the sum of Rs.1,00,000/- in each case and P.R. bond in the like amount to the satisfaction of the learned trial Court.  

7.         Needless to mention here that the observations made hereinabove are tentative in nature and the trail Court shall not be prejudiced from any such observations and decide the case strictly on merits on the basis of evidence available on record.

 

Both the bail applications stand disposed of in the above terms.

                       

                                                                                                J U D G E