IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Bail Application No. 1682 of
2023
|
DATE |
ORDER
WITH SIGNATURE OF JUDGE. |
Present: Mr.
Justice Naimatullah Phulpoto
Mr. Justice Amjad
Ali Sahito
For hearing of bail application
19.10.2023
Mr.
Muhammad Bilal Rashid advocate for the applicant/accused
Mr. Khadim
Hussain Addl. P.G
Mr. Adil Channa advocate for the complainant
I.O/PI Sohail
-.-.-.-.-.-.-.-.
Naimatullah Phulpoto,
J.- Applicant/accused
Zafar Iqbal seeks post arrest bail in Crime No. 488/2023 registered at PS Preedy for offences under Sections 384, 385, 386, 427, 34
PPC read with Section 7 of Anti-Terrorism Act, 1997. Prior to this
applicant/accused applied for bail before the trial Court, the same was
rejected vide order dated 25.07.2023.
2. Learned advocate for applicant/accused
mainly contended that there was delay of about 12 hours in lodging of the FIR
for which no plausible explanation has been furnished; that no specific role
has been assigned to the applicant/accused in the commission of the offence;
that ingredients of the alleged offences are not made out from the contents of
the FIR and 161 Cr.P.C statements of P.Ws; that co-accused Zia-ur-Rehman has been granted bail
by the trial Court and case of the applicant/accused is identical to that of
co-accused; that accused Syed Owais has been let off
by the police during investigation; that ATC also lacks jurisdiction in the
matter. Lastly, argued that applicant/accused is entitled for grant of bail on
the rule of consistency. He relied upon the cases of Nadeem Majeed vs. The State and others (2007 SCMR
1958) and Abdul Rehman alias Muhammad Zeeshan vs. The State and others (2023 SCMR 884).
3. Mr. Khadim
Hussain, Additional Prosecutor General Sindh opposed the bail application mainly
on the grounds that name of the applicant/accused transpires in the FIR and he
has been involved by P.Ws during investigation. However, Addl. P.G submits that
apparently Anti-Terrorism Court lacks jurisdiction in the matter. Counsel for
the complainant submits that case of applicant/accused is distinguishable from
the case of co-accused to whom concession of bail has been extended. He contended
that sufficient material has been collected against the applicant/accused
during investigation, as such he is disentitled for concession of bail.
4. We have heard the learned counsel for
the parties and perused the relevant record.
5. We are inclined to grant bail to the
applicant/accused for the reasons that there
was delay of about 11 hours in lodging of the FIR for which no plausible
explanation is furnished, Syed Owias the co-accused
has been let off by the police during investigation. Apparently ingredients of
offences are not attracted. Co-accused Zia-ur-Rehman has been granted bail by the trial Court for the
following reasons:
“Though name of the
applicant/accused at the bottom of 12 hours delayed FIR has been mentioned by
the complainant, yet neither any role nor his presence at the spot has been
shown by him. Even co-accused namely Amin Pasha, Zafar and Umair
as per contents of FIR did not take the name of the applicant/accused to be
their accomplice in any manner. The complainant in his statement recorded under
section 161 Cr.PC has not alleged anything against
the applicant/accused, as his arrival is only shown at the place of incident,
which seems to be an improvement and afterthought. It is also worth to mention
here that co-accused Amin Pasha, Zafar and Umair
alleged that they were doing the alleged act at the instance of accused Owais but accused Owais has been
shown by the I.O to have been released under section 169 Cr.PC
in final challan. The case has been challaned and the accused is no more required to the police
for any further investigation. Keeping in view the case law of Shahadat Ali Khan & others Versus the State and Shahnawaz Versus the State referred supra, there is no
impediment to grant the post arrest bail on the merits after rejection of
earlier pre arrest bail. The attending circumstances makes the case of
applicant/accused as one of further inquiry, therefore, accused Zia ur Rehman S/o Aziz ur Rehman stands admitted to post
arrest bail subject to furnishing solvent surety in the sum of Rs.200,000/- and
P.R bond in the like amount to the satisfaction of this court.”
Case of the
applicant/accused is more or less identical to that of co-accused. Moreover,
nothing incriminating was recovered from him. It is well settled
law that whenever, reasonable doubt arises with
regard to the participation of an accused person in the crime or about the
truth/probability of the prosecution case and the evidence proposed to be
produced in support of the charge, the accused should not be deprived of
benefit of bail. Freedom of an individual is a precious right. Personal liberty
should not be snatched away from accused unless it becomes necessary to deprive
him of his liberty under the law. Where story of prosecution does not appear to
be probable, bail may be granted so that further inquiry may be made into guilt
of the accused. Applicant/accused is in custody since 23.06.2023. Reliance
is placed on the case of Syed Amanullah Shah versus the State and another (PLD 1996 S.C 241).
6. Prima facie,
there are no reasonable grounds for believing that the applicant/accused has
committed the alleged offences but there are sufficient grounds for further
inquiry into his guilt. Resultantly, concession of bail is extended to
applicant/accused Zafar Iqbal son of Fakhar Uddin, subject to his furnishing solvent surety
in the sum of Rs.200,000/- (Rupees Two Hundred Thousand) and P.R. bond in
the like amount to the satisfaction of the trial Court.
7. Needless to
mention here that the observations made herein above are tentative in nature,
the trial Court shall not be influenced by the same while deciding the case of
the applicant/accused on merits.
JUDGE
JUDGE
Wasim ps