ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Criminal Bail Application No. 643 of 2016
Applicant: Kamran Mansoor s/o. Musharraf Ali,
through Mr. Shab Alam, Advocate.
Respondent: The State, through Mr. Abdullah Rajput, APG.
Complainant: Ali Bux s/o. Muhammad Ibrahim Sanjrani,
through Mr. Bashir A. Mirani, Advocate.
-----------------
Date of hearing: 03.02.2017
Date of order: 03.02.2017
-----------------
O R D E R
Zafar Ahmed Rajput, J:- After rejection of his earlier bail application bearing No. 1872 of 2015, by the learned Additional Sessions Judge No.VIII, Karachi East, vide order dated 10.12.2015, the applicant/accused Kamran Mansoor s/o. Musharraf Ali through instant bail application has sought pre-arrest arrest bail in Crime No. 359 of 2014, registered at PS Gulistan-e-Jauhar, Karachi under Section 302/324/34 P.P.C. He was granted ad-interim pre-arrest bail by this Court vide order dated 29.09.2016, now he seeks confirmation of his bail.
2. Briefly stated, the facts of the case are that on 15.07.2014 at 2200 hours complainant Ali Bux s/o. Muhammad Ibrahim Sanjrani lodged the aforementioned F.I.R. alleging therein that on 25.03.2014 at 1415 hours the applicant/accused accompanied by local police and Anti-Encroachment Team made fire shots with Kalashnikov that hit his brother, namely, deceased Noor Muhammad, who sustained injury and fell down, he was taken to hospital where he subsequently died.
3. The learned counsel for the applicants/accused has mainly contended that the applicant is innocent and has falsely been implicated in this case by the complainant party; that he is by profession a journalist; however, he has wrongly been described as land grabber in the F.I.R. by the complainant with malice and ulterior motive; that on the alleged date the Anti-Encroachment Unit and local police carried out anti-encroachment operation, which was resisted by the complainant party by attacking on them, during which there was an exchange of fire between police and complainant party and as a result thereof deceased Noor Muhammad died; that such F.I.R. of the incident has been lodged by the Supervising Tapedar Gulshan-e-Iqbal, namely, Muhammad Hussain at PS Gulistan-e-Jauhar bearing Crime No. 182 of 2014 under Section 147/148/149/184/353/324/485/34 P.P.C. and such incident was also reported in various newspapers, copies whereof are enclosed alongwith bail application at pages No. 35 to 53; that besides the said F.I.R. two other F.I.Rs. bearing No. 183 and 184 of 2014 were also registered by Gulistan-e-Jauhar police against fellows of complainant party under Section 23(1)-A of Sindh Arms Act, 2013, who were arrested from the spot with illegal arms; that complainant and his family members are involved atleast in 35 cases of heinous nature, as per report of SHO PS Gulistan-e-Jauhar, which he submitted in Constitutional Petition No. S-666 of 2014, filed by the complainant before this Court; that it is alleged that the applicant caused fire arm injuries from Kalashnikov to deceased Noor Muhammad but the very fact is negated in the FSL report, which shows that the alleged bullet was of 9 mm bore fire arm; that it is a settled principle of law that doubt even at bail stage is to be resolved in favour of the accused; therefore, he is entitled for the concession of pre-arrest bail. In support of his contentions, the learned counsel for the applicant/accused has placed his reliance upon the cases of Shafiq-ur-Rehman vs. The State and others [2011 P.Cr.R. 1005(Rawalpindi)], Altaf Hussain, etc vs. The State, etc. [2014 P.Cr.R. 983 (Multan)]I, Abdul Rasheed Gresta and another vs. The State through Advocate-General, Azad Jammu and Kashmir, Muzaffarabad and another [2013 PSC {Crl.} 73 (Supreme Court of AJ&K], Nasir Khan vs. Waseel Gul and another [2009 PSC {Crl.} 804 (Supreme Court of Pakistan)], Piara Singh and others vs. State of Punjab (AIR 1977 Supreme Court 2274), Mst. Riaz Bibi vs. Sardar and 3 others [1999 P.Cr.L.J. 1323(Peshawar)], Ali Sher vs. The State [2005 MLD 535 (Lahore)], Tariq and 2 others vs. The State [2009 P.Cr.L.J. 320 (Karachi)], Sh. Muhammad Gulzar vs. vs. The State [2009 P.Cr.L.J. 163 (Lahore)], Muhammad Bashir and others vs. The State [2004 P.Cr.L.J. 1000 {Shariat Court (AJ&K)], Fakir Babar Khan vs. The State [2007 P.Cr.L.J. 352 (Karachi)], Muhammad Shaukat and another vs. The State and another [2010 P.Cr.L.J. 1775 (Lahore)], Qamar alias Mitho vs. The State, etc. [2012 PSC {Crl.} 93 (Supreme Court of Pakistan)], Syed Muhammad Firdaus and others vs. The State [2005 SCMR 784 (Supreme Court of Pakistan)] and Zaheer Ahmed and another vs. Ibrar Hussain and 7 others [ 2014 PSC {Crl.} 865 (Supreme Court of AJ&K].
4. On the other hand, learned counsel for the complainant has vehemently opposed this application on the ground that the applicant is a land grabber and to cover his illegal acts he has claimed to be a journalist and he is also habitual of using law enforcement agencies to cover his illegal acts and in the alleged incident the officials of Anti-Encroachment Cell and local police has acted against the complainant party on the instigation of applicant/accused illegally and without any legal justification. With regard to FSL report, the counsel for the complainant has submitted that the complainant is an illiterate person, as such, he does not know the difference between Kalashnikov and 9 mm pistol; therefore, he recorded in the F.I.R. that the applicant was in possession of Kalashnikov and caused injury to deceased Noor Muhammad. He has admitted that the complainant and his family members are involved in as many as 35 criminal cases, but submitted that in none of the case either complainant or his any family members have been convicted.
5. The learned APG while adopting the arguments of the learned counsel for the complainant has also opposed this application on the ground that while deciding application for grant of bail, the Court requires only a tentative assessment of the evidence available with the prosecution and it is yet to be determined through a trial if deceased Noor Muhammad died by causing fire arm injury of 9 mm pistol; however, the complainant has implicated him in the F.I.R. by name and with specific role; hence he is not entitled to the confirmation of ad-interim bail.
6. I have considered the arguments advanced by the learned counsel for the parties and also perused the material available on record.
7. It is an admitted position that there are two versions of the incident, one recorded by the complainant in aforementioned F.I.R. and the other as reported by Supervising Tapedar Muhammad Hussain in F.I.R. bearing No. 182 of 2014 for creating hindrance in performing official duties and attacking on them by the complainant party in removing of illegal encroachments and getting the land vacated occupied by them illegally. The presence of officials of Anti-Encroachment Cell and local police at the spot when the offence allegedly taken place has also not been denied by the counsel for the complainant as well as learned APG. It is also an admitted position that the FSL report does not support the prosecution case that the deceased Noor Muhammad died from the fire shot made by Kalashnikov, as the same discloses that bullet hit to said deceased was fired from 9 mm pistol, while as per F.I.R. neither applicant nor any other person at the spot has been shown having in his possession 9 mm pistol. It is yet to be determined if the officials of Anti-Encroachment Cell and local police had acted on the instigation of applicant/accused against the complainant. Under the circumstances, the guilt of the applicant requires thorough probe which can only be possible during enquiry by the trial Court. The case of the applicant in tentative assessment of the evidence available with prosecution squarely falls under the purview of further enquiry as envisaged under sub-section (2) of Section 497 Cr.P.C.; hence the interim pre-arrest bail granted to the applicant/accused vide order dated 29.09.2016, is confirmed on the same terms and conditions.
JUDGE
Athar Zai