ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Cr. Bail Application No.859 of 2010. _____________________________________________________
Date Order with signature of Judge
For hearing
.10.2010.
Mr. Shamsher Abbas , Advocate for the Applicants
Ms Rahat Ahsan, D.P.G.
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Being aggrieved and dissatisfied with the order dated 27.8.2010 passed by the Vth Additional Sessions Judge Karachi West in Sessions Case No.465/2010 arising out from FIR No.302/201 under Section 353/324/34 PPC registered at P.S. Mominabad, whereby the bail application was declined by the learned Judge, the applicant has filed the instant bail application before this Court.
Brief facts relevant for the purposes of disposal of the instant bail application and the prosecution story as stated in the FIR is that complainant ASI Rana Muhammad Nadeem reported that:-
“I ASI as per Roznamcha alongwith ASI Ahmed Butt, and subordinates namely PC Nasir Shahzad-24425, PC Hameedullah-21830, PC Ikramullah-24536, PC Jehanzeb-24370, PC Zahid Hussain-13882, PC Bakhat Zaman-27744, on private motorcycles left P.S for preventing the crimes in the area. During patrolling, we received spy information that some persons were available at the Graveyard of Zia Colony. In pursuance of such information, we reached at the informed place at around 1830 hours and saw four persons in suspicious condition, who on seeing the police party started firing upon us and in defence we also fired three shots of SMG in the air and surrounded the culprits, thereafter we arrested all of them. On inquiry, accused disclosed their names to be Saadat Khan @ Moota S/O Dilbar Khan and one pistol of 30 bore loaded with 5 rounds in magazine from his right hand; 2, Liaquat S/O Hayat Ali, one pistol of 30 bore loaded with 4 rounds in magazine was recovered from his right hand; 3, Rehmat Ali @ Khan Ali S/O Fazal-e-Haq and recovered one pistol of 30 bore loaded with 3 live rounds in its magazine from his right hand, and 4, Ulfat Pir S/O Ali Sher, and recovered one pistol of 30 bore loaded with 3 live rounds in its magazine from his right hand; and on further inquiry they failed to produce valid licenses for their weapons. Due to non-availability of private persons, I sealed all the pistols and ammunition separately and also secured four empties of pistols and 3 empties of SMG from the spot. Thereafter the accused persons were brought at P.S where separate FIRs U/S 324/353/34 PPC and U/S 13(d), Arms Ordinance were registered against them.”
Three accused persons nominated in the FIR were reported to be arrested on the spot, challan has been submitted and the present applicants are behind the bar since their arrest, whereas co-accused namely Ulfat Heera has reportedly been granted bail by the learned trial Court.
It is inter alia contended by the learned counsel for the applicants/accused that the applicants have been falsely implicated in the instant crime by the police and there is no private eye-witness of the alleged incidence. Per learned counsel, the instant FIR is registered by the police allegedly on the basis of spy information and inspite of having prior information, police has failed to associate the private witnesses either memo of asset or recovery. Per learned counsel, admittedly there is no injury nor any damage to the police mobile or any property out of alleged firing by the applicants/accused, whereas the recovery has been foisted upon the applicants/accused. Per learned counsel, as per prosecution story one SMG was used during the incidence however the same has not been made the case property in this case hence, this is a case of further inquiry. Learned counsel has vehemently argued that the learned trail Court has erred in law by not following the principle of consistency as one of the co-accused allegedly having the identical role in the instant crime was granted bail by the learned trial Court, which fact was in the knowledge of the trial Court as evident from its own diary dated 7.6.2010, which is attached alongwith the listed application. Per learned counsel, this is a fit case for grant of bail, therefore, the applicants/accused may be admitted to bail. In support of his arguments, he has placed reliance on the case of Abdul Qadir v. The State reported as 2006 YLR 3022.
Conversely, the learned D.P.G has opposed the grant of bail on the ground that the applicants/accused have been nominated in the FIR and the recovery has been affected, however could not respond to the arguments of the learned counsel for the applicants/accused relating to ineffective firing and further inquiry into the matter.
I have heard the learned counsel for the applicants as well as learned D.P.G and perused the record of the case. On tentative assessment and material available on the record it appears to be a case of ineffective firing where admittedly no one has received any injury or any damage to the police mobile or any property has been shown. One of the co-accused having been assigned similar role has been granted bail. Reliance has been placed in this regard by the learned counsel for the applicants/accused in the case of Abdul Qadir v. The State 2006 YLR 3022 appears to be correct as the same is based on the well settled principles as enunciated by Hon’ble Supreme Court in the case of Tariq Bashir v. The State P.L.D 1995 SC 34. In view of hereinabove facts, I am of the opinion that the applicants/accused have made out a case for grant of bail. Accordingly, applicants/accused vide short order dated 7.9.2010 were admitted to bail subject to furnishing solvent surety in the sum of Rs.1,00,000/- each and P.R bond in the like amount to the satisfaction of the trial Court. These are the reasons for such order.
Needless to observe that the observations made hereinabove are tentative in nature and trial court shall not be prejudiced by any such observations and shall decide the case strictly on merits keeping in view the evidence available on record.
JUDGE