IN THE HIGH COURT OF SINDH, KARACHI

                   Criminal Bail Application No. 1193 of 2009

                                                  

   Present

    Mr. Justice Mushir Alam

    Mr. Justice Aqeel Ahmed Abbasi.

 

Date of hearing              :                     04.02.2010

Date of order                  :                       04.02.2010

Applicant                       :                   Salman Qureshi through

                                                         Mr. A.Q. Halepota, Advocate.

 

Versus

 

Respondent                              :        The State through

Ms.Rehana Akhter, D.P.G.

 

 

ORDER

 

Aqeel Ahmed Abbasi, J.  The instant bail application under Section 21(D) of the Anti Terrorism Act, 1997 read with Section 497 Cr.P.C. has been filed by the applicant Salman Qureshi son of Ziauddin Qureshi, whose application under Section 21 (D) A.T.A, 1997 read with Section 497 Cr.P.C filed before the learned Anti Terrorism Court No.II, Karachi Division Karachi in Special Case No.133 of 2008 was dismissed vide order dated 28.8.2009.

 

2.       Brief facts leading to the instant bail application are that an FIR was registered at P.S. Shahrah-e-Faisal, Karachi East on 6.11.2008 at 2230 hours under Section 365-A/34 Section PPC reporting the alleged incident taken place on 19.10.2008 at about 1800  hours. The contents of the FIR are reproduced hereunder for the sake of brevity and relevance.

 

"With reference to report No.40 dated 06.11.2008 of daily diary register of AVCC Police, Noor Ahmed Javed son of Choudhri Muhammad Shafi resident of B/703, Block-6, Gulshan-e-Iqhbal, came and stated that I reside on above address with family and I do construction work. My son runs an Estate Agency called Noor Estate Agency. On 19.10.2008 at 6.00 p .m a party consisting of a boy and girl went to see a house along with my son Khurram Javed on an Alto Car. My son Khurram Javed did not return back to house till late hour of night. I therefore, made a contact on his mobile phone but his mobile was shut-off. I lodged report about missing of my son on 20.10.2008 at Police Station Shara-e-Faisal. Thereafter, I started getting phone calls for ransom. I informed CPLC about it. On 28th October 2008, Muhammad Irshad father-in-law of my son Khurram Javed paid Rs.Ten Lacs to kidnappers at 0300 hours (night time) a Pizza Hut, Gulshan-e-Iqbal, Block-7. The kidnappers released my son after half an hour and they threatened that it will not be better if FIR etc, was lodged. I got frightened. Due to it I did not got any complaint registered. Today, I am giving statement after being called by you Inspector. This is my statement. I have heard it and it is correct."

 

3.       It appears that after registration of the FIR the Inspector, who registered the said FIR was appointed as I.O of the case, arrested the present applicant on 7.1.2008 who was already in custody of police in another case. The challan was submitted in Court. Statement of the abductee Khurram Javed was recorded under section 164 Cr.P.C by the learned Judicial Magistrate No.XI Karachi East on 12.11.2008 in presence of co-accused Mst. Laiba Anthony, Imran Ahsan and Muhammad Zubair. (Copy of such statement is annexed with the bail application and marked as annexure "B), whereas true translation is also annexed and marked as annexure "B-1", the same is available at page 31 of the file.

 

4.       After completion of investigation charge-sheet was submitted and the case was assigned to the Anti Terrorism Court No.2 Karachi Division, Karachi for trial. The bail application was also filed on behalf of the present applicant before the learned trial Court  and the same was dismissed by the learned trial Court vide its order dated 28.8.2009, which is available as annexure "C-1" at page 47 of the file.

 

5.       Before arguing the case on merits, the learned counsel for the applicant has drawn our attention to an order dated 14.12.2009 passed by a Division Bench of this Court in Criminal Revision Application No.97 of 2009 alongwith statement  dated 14th January 2010 filed by the counsel for the applicant. The learned counsel has pointed out that in the said criminal revision application, wherein the order dated 16.7.2009 passed by the learned Special Judge, Anti Terrorism Court on an application under Section 338 Cr.P.C moved on behalf of accused Mst.Laiba Anthony was challenged. It was contended in that case that the applicant namely Laiba Anthony was granted pardon in terms of Section 338 Cr.P.C and the applicant complied with the conditions of that order granting her pardon but the trial Court on its own proceed examined her evidence and passed the impugned order while directing recording of further prosecution evidence made an observation that the applicant will make statement under Section 342 Cr.P.C as she is not yet finally declared as an approver and pardoned. It was argued by the learned counsel for the applicant that the trial Court in passing the impugned order has committed grave illegality as it did not take into consideration the provisions of Section 339 and 339-A Cr.P.C. Reliance is placed on the case of Malik Mushtaq @ Black Prince v. The State 2005 YLR 1728 and Mst.Tahmina Asif v. The State PLJ 2008 FSC 100. A Division Bench of this Court while disposing of said criminal revision application observed that the trial Court in the present case, however, did not follow the procedure laid down in Section 339 and 339-A Cr.P.C and it was further observed that from the impugned order it appears that without taking  certificate containing opinion of the Public Prosecutor, the trial Court on its own proceeded to consider the evidence of the applicant and further proceeded to try the applicant as an accused person jointly with the other  co-accused. Inspite of the fact the applicant was not finally declared as an approver and pardoned and the trial Court required her to give statement under Section 342 Cr.P.C. It was further observed by the Division Bench of this Court that the trial Court in dealing with the case of a person who has been tendered pardon under Section 338 Cr.P.C, whose statement under section 164 Cr.P.C has already been recorded and whose evidence has also been recorded as prosecution witness was required to be dealt with as per procedure provided under Section 339 and 339-A Cr.P.C

6.       In view of the findings in Criminal Revision Application No.97 of 2009, it was argued by the learned counsel for the applicant that the statement recorded by Mst.Laiba Anthony is required to be treated as statement of the witness. The learned counsel for the applicant has pointed out that the present applicant has not been nominated in the FIR. There is a delay of about 17 days in lodging the FIR. The name of the applicant for the first time found mention in the statement of Mst.Laiba under Section 164 Cr.P.C recorded on 26th May 2009, which is available as annexure "E" at page 61 of the file. The learned counsel read out the entire evidence of Mst.Laiba Anthony to show that there is no specific allegation against the applicant/accused for having participated in the alleged offence or acted as accomplice in such crime. It has been argued that the maximum role which has been assigned to the present applicant is that the applicant, on the request of Mst. Laiba has lend his car which is alleged to have been used in the instant crime, for her some personal use. The learned counsel further states that admittedly Mst. Laiba and applicant have good relations since Mst. Laiba used to borrow the car of the applicant occasionally. The learned counsel further argued that no identification parade was made. He referred to the statement under section 164 Cr.P.C of the abductee namely Khurram Javed recorded on 12.11.2008, wherein the abductee has identified only three accused persons whereas Imran Ihsan alias Sunny, Zubair alias Mamnoon and Mst.Laiba. There is no identification of the present applicant inspite of the fact that he was already under arrest since 7.11.2008. The learned counsel also referred to the statement of Muhammad Irshad, the father-in-law under section 161 Cr.P.C recorded on 10.11.2008 to show that the present applicant has not been assigned any role by such witness in respect of the crime. It was finally argued by the learned counsel for the prosecution as no incriminating evidence against the present applicant as neither he has been nominated in the FIR nor any role has been assigned to him by the complainant, abductee or the witness referred to hereinabove nor the accused identified by the abductee. The prosecution has merely connected the applicant on the basis of presumption and surmises as the car which has been used in the alleged crime belongs to applicant and further there is recovery of Rs.5,50,000/- from the possession of the applicant which according to prosecution is part of the ransom money which was allegedly received by the other co-accused person in the instant crime. In support of his arguments learned counsel has placed reliance on the following case law:-

 

(i)       Dhani Bux alias Dhanoo and 2 others v. The State 2000 P.Cr.L.J 239

(ii)      Khan v. The Crown P.L.D 1955 Sind 65

(iii)     Sikandar A. Karim v. The State 1995 SCMR 387

 

(iv)     Khadim Hussain and another v. The State 1989 P.Cr.L.J 2432

 

7.       Learned counsel for the applicant finally argued that this is a fit case for grant of concession of bail to the applicant as applicant  has falsely been implicated in the instant crime and there is no incriminating evidence against applicant and there is no likelihood of conviction of the applicant in this case.

8.       Conversely, the learned Deputy Prosecution General  opposed the bail application on the ground that the applicant has closed relations with the accused persons particularly Mst. Laiba, his car has been used in the alleged crime and further recovery of an amount of Rs.5,50,000/- has been affected on his pointation which according to the learned State Counsel is part of the ransom amount duly shared by all the accused persons. On the specific query of this Court as to whether the amount received as ransom or recovered from the applicant was marked currency, to which the learned D.P.G frankly replied in negative. The learned D.P.G further stated that in view of the explanation given in the FIR itself there is no delay in lodging FIR. She further referred to Article 40 of Qanun-e-Shahadat Order 1984 to show that since recovery of the amount has been affected in consequence of statement of the applicant before the police the same may be treated as sufficient proof against the applicant. She finally argued that the applicant is not entitled to bail.

9.       We have heard both the learned counsel, perused the record as well as the case law cited hereinabove. On the tentative assessment of the evidence available on record it appears that admittedly the applicant has not been nominated in the F.I.R, no direct role of alleged offence has been assigned in the challan, complainant, abductee or the prosecution witnesses examined have not identified the applicant in connection with the crime alleged nor any active role has been assigned except the alleged use of the car in the instant crime. The prosecution has not so far produced any incriminating evidence against the applicant connecting him with the instant crime and appears to have involved the applicant on the basis of suspicion.

 

10.     We are fortified in our view by a reported judgment of Hon'ble Supreme Court in the case of Muhammad Rafique v. The State 1997 SCMR 412, in which under some what similar circumstances the Hon'ble Supreme Court has held as under:

"4.     Fact that the petitioner is accused in a number of cases of robbery, is not sufficient to deprive him of his liberty. It has not come on record, as to, why identification test of the petitioner through eye-witnesses was not held when his name did not appear in the F.I.R. Mere production by the petitioner before police of some cash alleged to have been obtained by robbery, in absence of any other evidence. In this respect the observation made in the case of Ishaq Masih v. The State (1993 SCMR 1322) are relevant.

 

5.       In the circumstances, we convert this petition into  appeal and grant bail to appellant Muhammad Rafique in the sum of Rs.50,000/- with P.R bond in the like amount to the satisfaction of the trial Court."

 

11      In view of the above facts we are of the opinion that the prosecution case is not free from doubt and requires further inquiry and the incriminating evidence if any, to connect the applicant in the instant crime. Accordingly, for the above said reasons, by our shot order dated 4.2.2010 the applicant was admitted to bail in the sum of Rs.5,00,000/- and P.R bond in the like amount to the satisfaction of the trial Court with the observation that the applicant shall associate with the investigation, inquiry and/or trial without fail. It was further observed that in case of any abuse or misuse of the concession of bail by the applicant the trial Court will be at liberty to cancel the same. The applicant was directed to be released if not required in any other case.

 

12.     Needless to mention that the observations made hereinabove are tentative in nature and the trial Court shall not be prejudiced by such observations and decide the case strictly in accordance with law and on the basis of evidence available on record. It is further clarified that during the trial, if prosecution succeeds in producing any incriminating evidence against the applicant/accused the trial Court shall be at liberty to cancel the bail of the applicant after proper legal requirements in this regard.

 

These are the reasons for the short order whereby the applicant was admitted to bail on 04.02.2010.

                                                                                             Judge

                                                                 Judge

Karachi

Dated:   -02-2010