THE HIGH COURT OF SINDH AT KARACHI
Cr. Bail Applications No.74, 75, 76 & 77 of 2020
Present: Mr. Justice Abdul Maalik Gaddi
Justice Mrs. Rashida Asad
Applicants in (1) Zabiullah @ Zubair son of Abdul Rehman
(Cr. Bail Appln. (2) Faiz Muhammad @ Faizi son of Agha
No.74/2020) : (3) Ajmal son of Baba Meer, through Jamroz Khan Afridi, Advocate.
Applicant in Zabiullah @ Zubair son of Abdul Rehman
(Cr. Bail Appln. : through Jamroz Khan Afridi, Advocate.
No.75/2020)
Applicant in Faiz Muhammad @ Faizi son of Agha
(Cr. Bail Appln. : through Jamroz Khan Afridi, Advocate.
No.76/2020)
Applicant in Ajmal son of Baba Meer, through Jamroz
(Cr. Bail Appln. : Khan Afridi, Advocate.
No.77/2020)
Respondent : The State Through Mr. Abdullah Rajput,
Deputy Prosecutor General Sindh
Date of hearing : 25.03.2020
Date of Order : 25.03.2020
ORDER
Abdul Maalik Gaddi, J. – By this common order, we intend to dispose of the above captioned bail applications, as they arise out of same incident as well as common impugned order dated 13.11.2019 passed by the learned Judge, Anti-Terrorism Court No.XX, Karachi.
2. Through these bail applications, applicants/accused seek post-arrest bails in Crimes No.337/2019, 338/2019, 339/2019 and 340/2019, under Sections 353/324/427/34, PPC read with Section 7 ATA, 1997 and under Section 23(i)(a) of Sindh Arms Act, 2013, registered at police station Sohrab Goth, Karachi.
3. Prior to filing these bail applications, applicants/accused approached to the trial Court for grant of bail, but the same were dismissed vide order dated 13.11.2019. Hence these post-arrest bail applications.
4. Allegations against the applicants/ accused are that on 21.08.2019 complainant ASI Mumtaz Ali of police station Sohrab Goth was on patrolling duty along with his subordinate staff and during patrolling, when they reached at Bantwa Society Khaali Ground Karachi, where they found present applicants/accused, who upon seeing police party, allegedly made fire shots at them with an intention to commit their murder, which was returned by police too. This firing continued for some considerable time; whereafter, police apprehended present applicants/accused and whereas, their three others companions namely, Abdul Rehman alias Abdullah, Hameed and Shiva alias Shivu were succeeded to escape from the spot. On personal search, police recovered 9mm pistol along with magazine loaded with six live bullets from the possession of accused Zaibullah, whereas, one 30 bore pistol bearing No.F-F3316 along with magazine loaded with three live bullets were recovered from accused Faiz Muhammad and one pistol along with four live bullets were also recovered from accused Ajmal. As accused could not produce any license of the weapons, they were arrested and after completing all legal formalities, accused along with case properties were brought at police station, where separate FIRs were lodged against them on behalf of State.
5. Learned counsel for the applicants inter alia contended that applicants/ accused are innocent and have falsely been implicated in these cases; that nothing have been recovered from their possession; that the place of incident was thickly populated commercial/ residential area, but no any independent person was cited from locality to witness the event and all the prosecution witnesses are police officials and subordinates of arresting officer which is clear violation of section 103 Cr.P.C., that it is a case of ineffective firing as none from either side has sustained any bullet injury during alleged encounter between the police and present applicants/accused; that case has been challaned and present applicants/accused are no more required for investigation, as such, he prayed from grant of bail.
6. On the other hand, learned DPG has opposed these bail applications on the ground that applicants/accused have made an attempt to take the lives of complainant/police party by making such fire shots with a fire arm weapons at them and this act comes within the ambit of terrorism and heinous one; that unlicensed weapons as stated in FIR along with live bullets were recovered from their possession in presence of mashirs who have no inimical terms with them and if at this stage, bails are granted to them, they will misuse the same.
7. Arguments heard and record perused.
8. It is settled principle of law that mere heinousness of offence is no ground to refuse bail, if otherwise the accused becomes entitled to the concession of bail. It goes without saying here that an ultimate conviction and incarceration of a guilty person can be repaired by the wrong caused by a mistaken relief of bail granted to him/them, but no satisfactory reprisal can be offered to an innocent person/persons for his/them unjustified incarceration at any stage of case, if he/they is/are acquitted in the long run. It is also settled law that benefit of doubt can be given to the accused even at bail stage.
9. It appears from the record that cases have been challaned and the present applicants/accused are no more required for investigation. The allegations against the applicants/accused are that on the relevant date and time, they allegedly made firing upon the police party and in retaliation, police party also made firing upon accused, which were continued for some time, but it is surprising to note that no one has sustained any bullet injury during this encounter; thus, it appears that it is a case of ineffective firing. Not only this, during encounter, co-accused namely, Abdul Rehman alias Abdullah, Hameed and Shiva alias Shivu were successfully escaped from the spot, but it is also astonishing to note that police party though armed with sophisticated weapons, despite this fact, how can aforesaid co-accused were escaped from the spot.
10. It appears from the record that the whole case of the prosecution is based upon the evidence of police officials. No doubt, the evidence of police officials are as goods as from the private witness, but when the whole case of the prosecution is based upon police officials, therefore, their evidence are required to be minutely scrutinized at the time of trial whether the incident has taken place in a fashion as stated in FIR or otherwise, till then, the case of present applicants/accused required further probe.
11. It also reveals from the record that the incident took place in a thickly populated area i.e. Bantwa Society Khaali Ground, Karachi, which was surrounded by shops and houses, but despite this fact, no person from the place of incident has been cited to witness the event. No explanation has been given in this regard. This fact also requires further probe. Nothing on record that present applicants/accused are involved in any criminal cases, therefore, according to learned Counsel for applicants, they are first offenders; hence, false implication of the applicants/accused in these cases could not be ruled out. When all these lapses/lacunas in this case were confronted to learned DPG, he has no satisfactory answer with him. No exceptional circumstances appears in this case to withhold the bail of the present applicants/accused. In this regard, we are supported with the case of Abdul Ghafoor v. The State reported as 1996 P.Cr.L.J. 1573. In this case law, accused with almost on identical story, were granted bail by this Court.
12. Keeping in view the above given facts and circumstances, prima facie, applicants/accused have succeeded to bring their case within the purview of subsection (2) of section 497, Cr.P.C., for this reason, applicants/accused are admitted to post arrest bail subject to their furnishing solvent surety in the sum of Rs.50,000/- (Rupees Fifty Thousand only), each applicant/accused in each crime, and PR bond in the like amount to the satisfaction of trial Court.
13. Needless to mention here that any observation if made in this order is tentative in nature and shall not effect the merits of the case. It is made clear that in case if during proceedings the applicants/ accused misuse the bail, then trial Court would be competent to cancel the bail of the applicants without making any reference to this Court.
JUDGE
JUDGE
Faizan/PA