IN THE HIGH COURT OF SINDH AT KARACHI

                          Cr. Bail Application No.861 of 2012

Date	Order with signature of Judge

For Hearing.

24.09.2012

           Mr. Shamshad Ali Qureshi, advocate for the applicant

           Mr. Abdullah Rajput, APG a/w I.O/SIP Zulfiqar.

                                    -----------

O R D E R

Aqeel Ahmed Abbasi,J:    Being aggrieved and dis-satisfied with the order dated 07.08.2012 passed by IVth Additional Sessions Judge, Karachi East in Crime No.127/2011 under section 302/324/353/186/34 PPC registered at Police Station Bahadurabad, Karachi, whereby the bail was declined to the present applicant, the applicant has approached this Court under Section 498 Cr.P.C. seeking his release on bail.

2.       The prosecution story as narrated in the FIR and recorded by the learned IVth Additional Sessions Judge, is as under:

“Briefly narrated the facts as glanced from the FIR are that complainant SIP Ghulam Asghar lodged FIR on 30.05.2011 at PS Bahadurabad stating therein that he alongwith his sub-ordinate staff was busy in patrolling. During patrolling at about 1700 hours he received telephonic message from PC Irfanullah that he alongwith PC Taj Muhammad were busy in patrolling in the area. During patrolling when they reached at Ameer Khusro Road Kingri House one Suzuki cultus golden colour in which 4 suspected persons were sitting PC Taj Muhammad gave signaled to stop them, but one of them fired upon him to which he become injured and the culprits are going towards Band chowk. On this information he alongwith subordinate staff proceeded towards Band chowk. The said car was stopped by them, on seeing police party the accused persons tried to escape from the car. Police party succeeded in arresting two culprits, who disclosed their names as Nisar Muhammad and Usman Yousuf. They also disclosed the name of absconding accused as Usman Ali and Zohaib Iqbal. Police brought the accused at PS and lodged the FIR, hence present second bail application.”

3.       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, whereas neither he was arrested from the spot nor any recovery whatsoever has been effected from his possession. Per learned counsel, the applicant was granted protective bail from this court vide order dated 18.07.2012 whereaftrer approached before he learned trial court to seek pre-arrest bail, however, vide order dated 07.08.2012 his bail has not been confirmed. Per learned counsel, the applicant has been implicated in the instant crime on the alleged statement of two co-accused persons who have already been granted bail by this court, whereas the third co-accused has been admitted to bail by the learned trial court. It is contended that during pendency of the trial and when the applicant was granted protective/bail before arrest the applicant cooperated with the investigation whose statement was recorded by the concerned I.O., however, no recovery whatsoever has been effected. It is further contended that the case of the applicant requires further inquiry, whereas he cannot be convicted on the basis of statement of co-accused persons before the police. Per learned counsel, he is behind the bar since his arrest and 7.8.2012, whereas the matter is not proceeding before the learned trial court. In support of his contention, learned counsel for the applicant has placed reliance on the following judgments.

1.       Mitho Pitafi v. The State 2009 SCMR 299

2.       Noor Zameer v. The State SBLR 2011 Sindh 1368

3.       Ghulam Mujtaba Qadri v. The State 2012 SCMR 662

4.       Manzoor Hussain v. The State 2011 SCMR 902

5.       Jaffar and others v. The State 1980 SCMR 784

6.       Dilmurad v. The State 2010 SCMR 1178

7.       Irfanullah and others v. The State 2012 YLR 1133

8.       Muhammad Murrad v. The State 2012 YLR 1309

9.       Bashir v. Muhammad Saleem  2012 YLR 666

10.     Anwar Ali alias Karriri v. The State 2012 YLR 934

4.       Conversely, learned APG present alongwith I.O of the case, though could not controvert the submissions made by the learned counsel for the applicant, however, submitted that since the applicant has been implicated by co-accused with an overt role, therefore, his case is distinguishable from the case of the other co-accused who have been granted bail. He has further submitted that there is other material which shows that the present applicant has hired a car which was used in the incident, therefore, there is a possibility that the applicant would have committed the alleged crime.

5.       I have heard the learned counsel for the applicant as well as learned APG and perused the record. From tentative assessment of the record it appears that except nomination of the applicant by co-accused persons in the instant crime there appears that no material has been shown by the prosecution so far which may directly implicate the applicant/accused with the alleged crime, whereas in the absence of any incriminating material and on the basis of mere statement of co-accused recorded before the police, the prosecution story cannot be considered as free from doubt. Accordingly, I am of the view that the case of the applicant requires further inquiry.

6.       In view of hereinabove, the applicant is admitted to bail subject to furnishing surety in the sum of Rs.5,00,000/- (Rupees Five Lac) with P.R. Bond in the like amount to the satisfaction of the learned trial court.

7.       Needless to observe that the observations made herein are tentative in nature and shall not prejudice the merits of the case, which may be examined strictly in accordance with law and on the basis of evidence on record.

8.       However, it is clarified that if, the applicant misuses the concession of bail in any manner, the learned trial court shall be at liberty to proceed against the applicant as per law.    

                                                                                          JUDGE