IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Bail Application No. 2360 of
2023
|
DATE |
ORDER
WITH SIGNATURE OF JUDGE. |
Present: Mr.
Justice Naimatullah Phulpoto
Mr. Justice Khadim Hussain Tunio
For
hearing of bail application
12.02.2024
Mr.
Nazirullah Mehsood advocate for the applicant/accused
Ms. Rahat Ahsan Addl. P.G
I.O/Inspector Saadat Butt CTD PS
-.-.-.-.-.-.-.-.
NAIMATULLAH PHULPOTO, J.- Applicant/accused
Fazal Rehman son of Taveez Khan seeks post arrest bail in Crime No. 92 of 2023
for offences punishable under Sections 11-H/11-N read with Section 7 of ATA
1997 registered at P.S CTD, Karachi. Prior to this applicant/accused applied
for bail before learned Judge, ATC-XII Karachi, the same was rejected vide
order dated 27.07.2023.
2. Learned advocate for applicant/accused
mainly contended that prosecution has failed to establish that
applicant/accused was collecting money for the purpose of terrorism; that there
is no material to connect the applicant/accused with the banned organization;
that evidence of 02 prosecution witnesses has been recorded before the trial
Court which is insufficient to connect the applicant/accused in the commission
of the offence; that father of the applicant/accused had filed Constitution
Petition regarding missing of the applicant/accused before this Court and the
police in order to justify illegal detention of the applicant/accused has
involved him in this false case. Lastly, it is submitted that applicant/accused
is in judicial custody since last 07 months and is no more required for
investigation.
3. Addl. P.G submitted that evidence of 02
prosecution witnesses has been recorded before trial Court and remaining P.Ws
shall be produced before the trial Court on the next date. It is submitted that
at the time of arrest of the applicant/accused, one receipt book and mobile
phone were recovered from the possession of the applicant/accused; that USB was
sent to the FSL and positive report is received. Lastly, it is argued that
applicant/accused was raising funds for banned organization for the purpose of
using the same in the act of terrorism. Addl. P.G opposed the bail application.
4. On the last date of hearing, report was
called from the trial Court, it is received, which shows that evidence of 02
P.Ws has been recorded by the trial Court and yet evidence of 04 P.Ws is to be
recorded before the trial Court. According to trial Court, in all, there are 06
prosecution witnesses in the case.
5. In the present case, learned advocate
for the applicant/accused referred to the depositions of the complainant and
P.W ASI Muhammad Akbar. At this stage, deeper
examination of evidence and any observation by this Court would amount to deep
assessment, which may influence the trial Court while deciding the case of the
applicant/accused on merits. It is settled principle of law that when the
witnesses have been examined, the Courts should not grant or cancel the bail
for the reason that deeper appreciation of evidence is not permissible under
the law. Reliance is placed upon the case reported as Rehmatullah v. The State (2011 SCMR 1332) wherein the Apex Court
has held that:
“3. Heard. The
petitioner was granted bail on 21-11-2008, which was cancelled by the learned
High Court on 19-3-2009, when according to the order itself the trial was at
the verge of conclusion. Learned Additional Prosecutor General stated that now
only one or two witnesses are yet to be recorded. The courts should not grant
or cancel bail when the trial is in progress and proper course for the courts
in such a situation would be to direct the learned trial Court to conclude the
trial of the case within a specified period. Reference may be made to Haji Mian
Abdul Rafique v. Riaz ud Din and another (2008 SCMR 1206). We find that the
impugned order was passed in violation of the law, therefore, we cannot
subscribe to it. In view whereof, we are persuaded to allow this petition and
direct the learned trial Court to conclude the trial of the case expeditiously.
4. For the foregoing
reasons, present petition is converted into appeal, allowed and bail granting
order dated 6-4-2009, passed by this court, is confirmed. However, learned
trial Court is directed to conclude the trial of the case within a period of
two months from the date of receipt of copy of this order.”
6. In the view of above, the Bail
Application is dismissed. However, the learned trial Court is directed to
expedite the matter and conclude the same preferably within two (02) months
from the date of receipt of this order.
JUDGE
JUDGE
Wasim
ps