IN
THE HIGH COURT OF SINDH AT KARACHI
Criminal
Bail Application No. 1446 of 2023
[Umar
Khan @ Gull Khan versus The State]
|
DATE |
ORDER WITH SIGNATURE(s) OF THE JUDGE(s) |
For hearing of bail application
--------------------------------
Date
of hearing 18.08.2023
Date
of announcement: 23.08.2023
Syed Lal Shah,
advocate for applicant/accused
Mr. Ali Haider Saleem Addl. PG
I.O/PI Tariq Mehmood
of PS Razvia Soceity
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Naimatullah Phulpoto,
J.- Umar Khan @ Gull Khan applicant seeks post-arrest bail
in Crime No. 538/2021 for offence under Section 302/34 PPC registered at P.S Rizvia Soceity, Karachi. Prior to
this applicant/accused applied for bail before learned Judge, ATC-VII, Karachi
but the same was rejected vide order dated 28.02.2023.
2. Learned advocate for the
applicant/accused mainly contended that co-accused Fazal
Hussain has already been granted bail by trial Court and case of the
applicant/accused is identical to that of co-accused. As regards to absconsion of the applicant/accused is concerned, it is
submitted that applicant/accused had no knowledge regarding registration of the
case againsat him and submitted that mere absconsion of accused is no ground to refuse him bail, in
case he is even otherwise, entitled for grant of bail. In support of his
contentions, reliance has been placed upon cases reported as Muhammad Nadim
vs. The State and another (2023 SCMR 184).
3. Mr. Ali Haider
Saleem, Addl. P.G submits that case of the
applicant/accused is identical to that of co-accused namely Fazal
Hussain, to whom concession of bail has already been extended by the trial
Court. However, he opposed bail application on the ground that
applicant/accused was absconder for about 03 years and his absconsion
is unexplained.
4. After hearing learned counsel for the
parties, we have perused the relevant record.
5. It appears that co-accused Fazal Hussain has been granted bail by the trial Court vide
order dated 27.07.2021 mainly for the following reasons:
“5. I have given due consideration to the arguments
advanced by the learned Counsel for the parties and carefully gone through
material placed before me, which shows that no specific role to
applicant/accused has been assigned. Delay is not explained by prosecution. It
is yet to be determined during trial that what offence, if any, was committed
by accused. Record further shows that no malafide or
ulterior motives are attributed to the applicant/accused which prima facie
makes the case of prosecution fit for further probe/inquiry into the
allegations leveled against the applicant/accused. The applicant/accused has
joined the investigation. Therefore, I confirm the ad-interim bail before
arrest granted on 17.07.2021 to the applicant/accused on same terms and
conditions. The applicant/accused is directed to cooperate with I.O in
investigation of the case and attend trial court regularly as and when
required. The above assessment is tentative in nature and shall not prejudice
the trial.”
Learned
Judge ATC, after taking cognizance of the offence, confirmed bail granted to
the co-accused Fazal Hussain, Faizan
Akbar and Muhammad Ramiz Shah by 1st
Additional Sessions Judge, Karachi Central.
6. We have perused, contents of the FIR,
statement of P.W Adil Khan u/s 161 Cr.P.C and other
material collected during investigation. We have also looked into the contents
of the FIR lodged by SIP Muhammad Asif of PS Razvi
vide Crime No. 539/2021 for offences under Sections 353, 324, 147, 148, 149 PPC
read with Section 7 ATA 1997. Apparently, it was a case of cross firing during
which, the deceased appeared from the house and sustained fire arm injury. Allegations against the applicant/accused
and others in the FIR as well as in 161 Cr.P.C statements are generalized in
nature. Addl. P.G has admitted that case of the applicant/accused is
identical to that of co-accused Fazal Hussain. In the
case of Hidayat Khan vs. the State and another (2023 SCMR
172), the Apex Court held that mere abscondence by
itself is not sufficient to withhold the concession of bail when he otherwise
became entitled for the grant of bail.
7. 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 Umar Khan @ Gull Khan 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.
8. 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 applicants/accused on merits.
J U D G E
J
U D G E