IN THE HIGH COURT OF SINDH, KARACHI

Crl. Bail Appln. No. S – 1107 of 2018

Ali Murad……………………………………………………..……….Applicant

Versus

The State…….…………………………………………………….Respondent

Date of Short Order : 28.09.2018.

Mr. Zohaib Z. Sarki, advocate for applicant

Mr. Dilbar Khan Leghari, advocate for complainant

Mr. Sagheer Abbasi, APG for State

O R D E R

Fahim Ahmed Siddiqui, J: The applicant Ali Murad son of Haji Khan is seeking post arrest bail in a case registered against him at PS S.S.H.I.A., Karachi vide FIR No. 197/2016 u/s 302, 324, 34, 512 PPC.

(2) I have heard the arguments advanced from either side and perused record produced before me. After getting enlightened by the valued submissions made at bar and scanning the record, I have observed as under:

(a) The allegations against the applicant are that he along with his co-accused has been actively involved in attacking upon the complainant party when they were returning from Vegetable Market (Sabzi Mandi) in a rickshaw. The accused persons, after restraining the rest of complaining party, fired upon deceased Jan Muhammad (brother of complement) and also caused injury to Dur Muhammad.

(b) Although, the specific allegation of opening a file upon complaining party is against Sher alias Shero but complainant alleges that applicant also rushed towards the deceased and fired upon him.

(c) After investigation, a Final Report (Challan) was submitted before the concerned Judicial Magistrate wherein the applicant was exonerated and his name was placed in Column No. 2. The said report was accepted by the magistrate and case was sent up for trial against the other nominated accused persons.

(d) During investigation, the appellant has taken plea that he was not available at the place of incident and his plea was verified by the investigating officer through independent witnesses and CDR collected by the investigating officer from the cellular companies.

(e) After letting of the applicant, no complaint application and/or criminal revision was ever filed before any forum.

(f) It is revealed from the record that, the learned Sessions Judge by mistake issued NBW against the applicant while passing order on a report u/s 87 & 88 CrPC. From the said order dated 06-04-2018 passed by the learned Sessions Judge, it appears that in the heading of the said order name of accused of Column No. 2 inadvertently mentioned owing to which NBW was issued against the applicant including the other absconding accused.

(g) As the applicant was placed in Column No. 2; therefore, he was not bound to appear before the trial Court unless a direction be issued to him by passing a separate order in this respect. Since the order dated 06-04-2018 was passed without appreciating that he is placed in Column No. 2; therefore, the said order is not proper up to the extent of the applicant.

(h) As soon as, the applicant came to know about the issuance of NBW, he approached the trial Court and succeeded in getting an interim pre-arrest bail vide order dated 17-05-2018. However, on the same date an application was submitted by the learned prosecutor under Section 193 CrPC. On 31-05-2018, when the applicant was in attendance in respect of pre-arrest bail, the application filed by the prosecution under Section 193 CrPC was allowed and the applicant was taken into custody.

(i) Although, the trial Court is competent to take a cue is in custody, if circumstances demand so but a usual practice is that whenever application u/s 193 is allowed, the trial Court is issued if someone or bailable warrant but this practice was not adopted in this case and no reason was assigned for doing so.

(j) Nevertheless, the name of the applicant was in Column No. 2 which was subsequently approved by the concerned magistrate and the said order was never challenged by the complainant and prosecution, till the applicant himself voluntarily appeared before the trial Court.

(k) At the time of appearance of the applicant before the trial Court in connection with a wrongly issued NBW, the prosecution then realized to move an application under Section 193 CrPC.

(l) In the peculiar circumstances of the case, when the applicant was already on interim, the order of cancellation of pre-arrest bail appears to be harsh especially when the opinion of investigation officer remained untouched for more than a year after the incident and passing order of the learned Magistrate.

(3) In view of the above observation, I am confident that a case of bail has been made out in favour of the applicant as such he is entitled to post arrest bail in the instant case.

(4) The ultimate outcome of the above discussion is that since the applicant is entitled to bail; therefore, the applicant is admitted to bail subject of furnishing a surety of Rs. 200,000/- (Rupees two hundred thousand) only and PR bond in the like amount to the satisfaction of trial Court through my short order dated 28-09-2018 and these are the reasons for the same.

(5) Before parting, I would like to further observe that if the applicant after getting bail will not appear before the trial Court and the trial Court is satisfied that the applicant becomes absconders then the trial Court is fully authorised to take every action against the applicant and his surety including cancellation of bail without making a reference to this Court.

J U D G E