IN THE HIGH COURT OF SINDH AT KARACHI

Present:

MR. NAIMATULLAH PHULPOTO, J

MR. ABDUL MAALIK GADDI, J

1. Cr. Bail Application No.1412 of 2015

Afzal-ur-Rehman alias Aatif

son of Jalil ur Rehman,

Presently confined in Central

Jail, Karachi …………… Applicant/Accused

Versus

The State …………… Respondent

FIR No.141/2015, U/S 353/324/186/34 PPC

R/W Section 7 ATA, 1997 & Section 4/5 of

Explosive Substance Act, P.S. Pak Colony

2. Cr. Bail Application No.1413 of 2015

Afzal-ur-Rehman alias Aatif

son of Jalil-ur-Rehman,

Presently confined in Central

Jail, Karachi …………… Applicant/Accused

Versus

The State …………… Respondent

FIR No.144/2015, U/S 23-1(a) of

Sindh Arms Act, 2013, P.S. Pak Colony

Applicant/Accused Afzal ur Rehman

through Mr. Jan Muhammad Naich Advocate.

The State through,

Mr. Saleem Akhtar Burriro Addl. P.G.

Date of hearing : 10.11.2015

Date of Order : 17.11.2015

ORDER

ABDUL MAALIK GADDI, J. Having remained unsuccessful in obtaining his release on bail from the trial Court in the aforesaid offences and crimes, the applicant Afzal-ur-Rehman alias Aatif is now seeking his release on bail through instant bail applications.

2. Facts necessary for the disposal of above said bail applications are that complainant S.I. Muhammad Javed Siddiqui of P.S. Pak Colony had registered said FIRs against the applicant/accused on 11.07.2015 stating therein that on 10.07.2015, he was on Illaqa gusht in police Mobile alongwith police party including HC Tariq Aziz, PC Nazeer Ahmed, PC Ayaz Mashkoor, Driver PC Sher Mohammad and PC Shamsur Rehman at Mewa Shah Road near Mewa Shah Mazar at about 0045 hours when saw a Rickshaw No.D-15/11056 Maker Rozgar coming from Bakra Piri Lyari, which was signaled to stop for checking whereupon four persons got down from the rickshaw and took shelter of the graves and started firing at the police party to kill them. The complainant in self defence ordered to retaliate and during encounter all four (04) accused were arrested, out of them accused Rizwan, Saqib and Maqsood had received injuries on their legs. Upon their personal search, one hand grenade and Rs.200/- were recovered from accused Rizwan and Rs.100/- and one hand grenade was recovered from accused Maqsood. From accused Saqib, one pistol 30 bore loaded magazine with 03 rounds and one round in chamber were recovered, whereas from the present applicant, one pistol 30 bore loaded magazine with 04 rounds and one round in chamber without number were recovered. The aforesaid accused persons could not produce the license, as such, they were arrested and arms and ammunition were sealed in presence of mashirs, cases were registered against the accused and weapons were sent to ballistic expert for report.

3. It is inter alia contended by the learned counsel for the applicant/accused that applicant is innocent and has been falsely implicated in this case. Applicant/accused was picked up from Shell Petrol Pump, Old Golimar, Karachi on 06.07.2015 at about 08.00 p.m. by the law enforcing agencies and had detained him alongwith other accused persons. Their family members have approached to the higher authorities against their illegal detention. A Constitution Petition No.D-4085/2015 was also filed before registration of case before this Court for recovery of the present applicant/accused alongwith other co-accused but the detention was not shown by the law enforcing agencies. He further contended that the entire prosecution case is false. The police had shown fake encounter. Nothing was recovered from the applicant/accused and recovery mashirs are police officials, therefore, their evidence cannot be relied upon. In support of his arguments learned counsel relied upon case reported in 2011 SCMR 954 (Qeemat Gul vs. The State).

4. Conversely, the learned Addl. P.G. has opposed these bail applications on the ground that the present applicant/accused was arrested on the spot with unlicensed pistol alongwith other co-accused persons namely Rizwan, Maqsood Ali and Saqib. According to him as per record they after seeing the police party fired at them to kill them and at the time of incident, accused Rizwan and Maqsood Ali were arrested with hand grenades. Mashirnama of arrest and recovery was prepared on the spot in presence of Mashirs. He further submits that the weapons recovered from accused were sent to the ballistic experts and report of ballistic experts is positive, offence is heinous in nature.

5. Applicant/accused applied for bail before the learned trial Court, the same was dismissed by learned Judge, Anti-Terrorism Court-II, Karachi vide order dated 17.09.2015. Thereafter, he approached this Court.

6. We have carefully heard the learned counsel for the parties and perused the police papers.

7. It appears that present accused and three co-accused were coming in rickshaw and while seeing the police party they fired upon police, police also fired in self defence. In the encounter, accused Rizwan, Saqib and Maqsood sustained firearm injuries. Two hand grenades were recovered from accused Rizwan and Maqsood Ali and from possession of present accused one 30 bore pistol without license was recovered. Mashirnama of arrest and recovery was prepared. Thereafter, all the four accused persons were brought to the police station where F.I.Rs. bearing No.141/2014 under sections 353, 324, 186, 34, PPC and F.I.R. No.142/2014 under section 4/5 of the Explosives Substance Act, 1908 were registered and hand grenades were sent to expert, positive report was received. Separate F.I.Rs. Nos.143/2015 and 144/2014 under section 23(1)(a) of the Sindh Arms Act, 2013 were also registered. It appears that hand grenades after recovery were defused and positive report has been received. Offence with which the accused is charged, is punishable for a term exceeding 10 years. Even otherwise, having such ammunition is a grave offence, undermining the law and order situation in Karachi as held by the Honourable Supreme Court of Pakistan in Special Case No.B-680 of 2015, in which it has been observed as under:-

“The petitioner seeks bail in two FIRs bearing Nos.854 & 855/2013 registered on 13.12.2013 at P.S. CID, West Karachi. The reason why we had found it necessary to issue notice to the State is noted in our previous order dated 17.06.2014. Today the Deputy Prosecutor General, Sindh has appeared and has pointed out that the occurrence took place on 13.12.2013 at 11:00 p.m. and FIR was lodged on the same day at 11:00 p.m. The petitioner Muhammad Adnan was also arrested on the same day and physical remand for seven days was obtained from the competent Magistrate on 14.12.2013. Two life hand grenades in addition to arms were recovered from the petitioner which were subsequently defused by Bomb Disposal Squad.

2. The offence alleged is punishable for a term extending to ten years. Even otherwise, having such ammunition is a grave offence undermining the law and order situation in Karachi”

Prima facie, applicant/accused has committed the alleged offence. Other contentions raised by the learned counsel for the applicant/accused require deeper appreciation of evidence, which is not permissible at bail stage. It has been pointed out by the learned counsel for the applicant/accused that charge has already been framed. We find no substance in the bail applications, the same are dismissed. However, trial Court is directed to decide the case expeditiously.

J U D G E