ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Crl. Bail Application No.1320 of 2012

 

Date                            Order with signature of Judge

 

1.For orers on M.A.No.442/2013

2.For orders on M.A. No.8908/2012

3.For hearing

 

 29.01.2013

 

Mr. Qaim Ali Memon, advocate for the applicant

Mr. Zafar Ahmed Khan, Addl.PG.

              -.-.-.-.-.-.-.-.

 

ORDER

 

Aqeel Ahmed Abbasi, J.      Being aggrieved and dissatisfied with the orders dated 25.10.2012 passed by the 1st Additional District & Sessions Judge (East) Karachi, who has dismissed bail application of the applicant, the applicant has approached this Court for seeking release on bail subject to furnishing surety.

 

2.         Brief facts as stated in the FIR are that today, I, SIP Mir Zaman alongwith officials P.C. Mashooq Ali-2101, PC/Driver Attaullah-10013 riding on SRP in vehicle No.SP-3270, for the duty of high-ups from Madadga 15, was present in checking duty of area police station K.I.A at CNG Pump Korangi Crossing point from 0900 hours at 2100 hours, that at about 1730 hours one unknown person on motorcycle came from Qayyumabad Naddi and informed that two persons who are going towards Allahwala Town, snatched two gold bangles from my wife, out of whom one wearing white shalwar kameez, and other in Brown colour shalwar kameez, therefore, on this information, I. S.I alongwith officials chased the said  motorcycle riders, and on  some distance I, S.I pointed and called to stop, on which the said motorcyclists with intention to kill started firing on police party, in self defence, I, S.I.P also ordered to make counter firing to PC Mashooq Ali and both the accused left the motorcycle and starting escaping by committing firing, we police also made counter firing, one dacoit killed at the spot and other dacoit was apprehended by encircling alongwith officials at the spot Allahwala Town, near safaid Masjid, in the meanwhile police of KIA mobiles reached at the spot, I, S.I.P recovered the T.T. Pistol 30 bore holding in right hand of Dacoit without number one round chamber 03 round load magazine in enquiry who disclosed his name Qurban Ali s/o Dur Muhammad, while at the spot killed dacoit holding pistol 30 bore bearing No.RCC-A1682, one round chamber empty magazine recovered, the apprehended accused disclosed the name of killed companion as Nawab Ali S/O Ali Gohar Tunio during this the general public gathered there, out of whom two persons namely Hamraz Baig son of Mirza Ilyas Baig and (2) Munir Akhtar son of Muhammad Bux, nominated as witness of the spot, the personal search of the apprehended accused was conducted, then from pocket of his wearing kameez two gold ornaments one mobile phone whiled from the pocket of killed dacoit one black purse in which Rs.200/- recovered, on the post the license of recovered arms were demanded, which the accused Qurban disclosed the same unlicenced, therefore, recovered arms sealed separately at the spot, taken into police custody at the spot motorcycle KFS-6013 Habib Red colour recovered mobile phone two bangles, purse taken into police custody, through mobile phone of HC Muzaraf Shah through Edhi Ambulance the dead body of accused sent to Jinnah Hospital and this act of arrested accused and died accused fall under section 353/324/186/472 PPC and U/s 13-D Arms Ordinance, therefore, the accused Qurban Ali is arrested accordingly, during this 03 bullets hit to stage mobile and accused, therefore, case registered against accused under section 427/353/324/186 PPC, is being handed over to SI Muhammad Aslam Mughal and arrested accused and killed accused separate cases of arms ordinance are being registered.

 

3.         Final challan has been submitted, whereas charge has been framed and the applicant/accused is behind the bar since 19.08.2012.

4.         It is inter-alia contended by the learned counsel for the applicant that the applicant, who is a police personnel has been falsely implicated in the instant crime by the police, whereas no one has been shown injured from police party nor any empties have been recovered from the place of incident. Per learned counsel, even the informer, who reported the matter to the police about the alleged incident of the robbery and the victim, who was allegedly deprived of the gold ornaments has been shown as witness nor their statements have been recorded by the police. It is further stated that the witnesses shown by the police are implanted, whereas they are not the resident of the vicinity.  It is submitted that the applicant is serving in the police department for the last about 24 years and has never indulged in any criminal activity nor has any previous criminal record. Learned counsel for the applicant states that there is no possibility of the conviction of the applicant in the instant crime as there is no material available with the prosecution which may connect the applicant with the alleged crime.  Per learned counsel, MLO report of the deceased namely Nawab Ali reflects that he was shot at the close distance of about three feet, whereas there is also blackening in the area of wound, which shows that the story of police encounter on the face of it is false and the police in order to cover up the false encounter of the deceased has cropped up the story and has implicated the applicant in the instant crime. He further stated that the alleged recovery of the gold is also false as the gold belongs to the applicant for which he has produced the receipt, whereas, the alleged recovery of the pistol has also been foisted upon him as his own pistol has been foisted upon the deceased Nawab Ali and the pistol of Nawab Ali has been foisted upon him to justify this false case of recovery of pistol. It has been urged that the matter requires further inquiry, hence the applicant may release on bail subject to furnishing surety. In support of his contention learned counsel has placed reliance in the following cases:-

 i)         Multan Khan v. Riaz Din 2010 MLD 1706

ii)         Habib-ur-Rehman v. The Staqte 2012 P.Cr.L.J 1522

5.         Conversely, learned APG has opposed the grant of bail on the ground that the applicant has been implicated in the instant crime, who was arrested at the spot in the presence of the witnesses and recovery of the pistol and gold ornaments has also been effected.

6.         I have heard learned counsel for the applicant as well as learned APG. From tentative assessment of the record and the contents of the FIR, it is observed that neither the persons who informed the police about the alleged robbery of the gold ornaments nor the victim has been shown as complainant or as a witness of alleged incidence. As regards the allegation regarding police encounter, it is noted that neither any police official has received any bullet injury nor the police mobile appears to have been damaged from such alleged encounter.  No empties have been shown to have been recovered from the place of incident. The allegation as contained in FIR refer to an incidence of ineffective firing. The prosecution case at this stage cannot be treated as free from doubt, whereas, it requires further inquiry into the matter.

7.         Accordingly, the applicant is admitted to bail subject to furnishing solvent surety in the sum of Rs.100,000/- (Rupees One Lac Only) with P.R. Bond in the like amount to the satisfaction of the trial Court.

8.         Needless to observe that the observation 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.

 

9.         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.

 

                                                                                                            J U D G E