IN THE HIGH COURT OF SINDH AT KARACHI
Criminal Bail Application No. 2056
of 2023
|
DATE |
ORDER
WITH SIGNATURE OF JUDGE |
Present: Naimatullah Phulpoto, Acting Chief Justice
Irshad Ali Shah, J
For hearing of main case
29.08.2024
Mr.
Mohsin Ali advocate for the applicants/accused
Ms.
Rubina Qadir Addl. P.G
-.-.-.-.-.-.-.-.
Naimatullah
Phulpoto, Acting Chief Justice.-Applicants/accused Ali
Gul, Asif, Nasrullah, Ghulam Ali and Zulfiqar Ali seek pre-arrest bail in Crime
No. 189/2023 for offences punishable under Sections 457, 354, 337-A(i), 384, 34
PPC read with Section 7 of ATA 1997 registered at PS Kalri, Karachi. It appears
that after usual investigation, I.O recommended disposal of the case under ‘C’
class. However, cognizance was taken by learned Judge, Administrative Judge,
ATCs Karachi. Prior to this applicants/accused applied for the same relief
before learned Judge, ATC-II, Karachi but the same was declined vide order
dated 14.09.2023.
2. Learned advocate for the
applicants/accused mainly contended that complainant Mst. Faiza and P.W/victim
Mst. Farah have sworn affidavits before the trial Court in which they have
exonerated the applicants/accused from commission of the offence; that from contents
of the FIR and other material, offence under Section 354 PPC is not made out.
Lastly, it is contended that while hearing application for pre-arrest bail
merits of the case can also be looked into. Reliance is placed upon the case of
Abdul Rehman vs. The State and others
(2023 SCMR 2081).
3. Addl. P.G opposed the bail application
mainly on the ground that evidentiary value of the affidavits is yet to be
determined by the trial Court; that allegations are serious in nature.
Therefore, accused are not entitled for grant of pre-arrest bail. Despite
issuance of several notices, complainant chose to remain absent.
4. Record reflects that complainant and
P.W/victim Mst. Farah have sworn affidavits before trial Court in which they
have exonerated the applicants/accused from commission of the offences. During
investigation, case was recommended for disposal under ‘C’ class but cognizance
was taken by Court. In the case reported as Abdul Rehman vs. The State and others (2023 SCMR 2081), Apex Court
has held that while granting pre-arrest bail, the merits of the case can be
touched upon by the Court. The intention
of the applicants/accused to outrage the modesty of victim Mst. Farah is yet to
be determined by the trial Court. It is also contended before us that FIR was
registered against the applicants/accused by the SHO with ulterior motives.
5. Prima facie, there are no reasonable grounds for believing that
the applicants/accused have committed the alleged offences, but there are
sufficient grounds for further inquiry into their guilt. Taking into consideration all the facts and
circumstances, a case for confirmation of pre-arrest bail is made out,
consequently, instant pre-arrest bail application is allowed. Interim
pre-arrest bail already granted to the applicants/accused is hereby confirmed
on the same terms and conditions.
6. Before
parting with this order, we observe that crucial issue of jurisdiction of
Anti-Terrorism Court to try this case under the provisions of Anti-Terrorism
Act 1997 is involved in this case. Trial Court is directed to determine the point
of jurisdiction before conducting trial in view of dictum laid down in the case
of Ghulam Hussain and others vs. The
State and others (PLD 2020 S.C 61).
6. Needless,
to mention here that the observations made hereinabove are tentative in nature
and would not influence the trial Court while deciding the case on merits.
7. The
instant bail application is accordingly disposed of.
ACTING
CHIEF JUSTICE
JUDGE
Wasim
ps