ORDER SHEET
IN THE HIGH COURT OF SINDH
AT KARACHI
Criminal
Bail Application No.1802 of 2014
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DATE ORDER WITH SIGNATURE(S) OF
JUDGE(S)
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For
hearing
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12.11.2014
Mr. Muhammad Imran Memo, Advocate for Applicant
Mr.
Khadim Hussain, D.P.G. a/w Inspector Ali Khan of P.S. Landhi.
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NAIMATULLAH PHULPOTO,
J.- This
is an application for bail moved on behalf of applicant/accused Muhammad Shah Rukh, who is detained in Crime No.85/2014
dated 01.05.2014, registered at police station Landhi, Karachi East, under
sections 147/148/149/435/427 read with section 7 of the Anti-Terrorism Act,
1997.
Brief facts of the prosecution case as
disclosed in FIR are that on 01.05.2014, S.H.O. Waseem Ahmad Qureshi of P.S.
Landhi Karachi, left police station along with his subordinate staff for
patrolling as the situation was tense on account of strike call of a political
party. The police party reached at main road near Bismillah
Masjid, where it is alleged that 30-35 persons had blocked the road by creating
terror in the vicinity. It is further alleged that a mob had set on fire a
vehicle bearing No.JB-0303. Assailants while seeing
the police made their escape good in the streets. S.H.O.
received spy information that applicant/accused Shah Rukh,
Faheem alias Mota and others,
belonging to Motaheda Quomi
Movement, were involved in the alleged incident. F.I.R.
was lodged on behalf of the State under the above referred sections.
Applicant/accused was arrested in
another case and he was put to the identification parade through S.H.O. Waseem Ahmed Qureshi in this case, who identified him that accused
Muhammad Shah Rukh was carrying stick (danda) at the
time of incident. On conclusion of investigation, challan was submitted against
present accused and others for offences under sections 147/148/149/435 /427
read with section 7(H) of the Anti-Terrorism Act, 1997.
Bail application was moved on behalf
of applicant/accused before the learned Judge, Anti-Terrorism Court-I, Karachi,
but the same was rejected vide order dated 22.08.2014. Thereafter, the applicant/accused
has approached this Court.
Mr. Muhammad Imran Meo,
learned advocate for the applicant/accused, contended that name of the
applicant/accused was introduced by S.H.O. in the F.I.R. on spy information. No explosive substance or Lathi was recovered from the accused. It is
also argued that accused was in the custody of Law Enforcing Agencies before the
alleged incident. Lastly, he argued that applicant/accused has not been
nominated by the driver of the bus in his statement recoded during
investigation.
Mr. Khadim Hussain, learned Deputy Prosecutor General Sindh,
has opposed the bail application on the ground that applicant/accused was
identified in the identification parade by the S.H.O.
I.O. had collected sufficient material against the
applicant/accused to connect him in this case. It is also argued that alleged
offence falls within the prohibitory clause of Section 497 Cr.P.C.
After hearing the learned counsel for
the parties and going through the record, it has been noticed that the
applicant/accused has not been nominated in the F.I.R.
as one of the culprits of the alleged incident and the name of the
applicant/accused had surfaced in this case on spy information received by the
complainant/S.H.O. In the identification parade,
applicant/accused has been identified by the S.H.O.
and part has been assigned to him that as he was carrying Lathi at that time. Apparently,
no evidence was collected against applicant/accused for committing mischief by
fire or any explosive substance for setting on fire the bus or caused damage to
any property. The allegations leveled against the applicant/accused in the F.I.R. are couched in generalized and collective terms, no specific part has been attributed to the
applicant/accused therein. Driver of the bus, namely, Syed Mazhar
Ali, has also not named the accused in his statement recorded under section 161
Cr.PC. Since in this case, identity of the assailants, who caused mischief by
explosive substance, is yet to be established and it was doubtful as to who,
among accused persons, caused the alleged offence. Benefit of doubt even for
limited purpose of bail is to be extended to the applicant/accused in the
circumstances of case. Applicant/accused is no more required for investigation,
case has already been challaned. Applicant/accused is
in jail since 5 months, yet charge has not been framed.
For the above stated reasons, prima
facie, there are no reasonable ground for believing that the applicant/accused
has committed the alleged offence but there are sufficient grounds for further
inquiry into his guilt as contemplated under subsection (2) of Section 497
Cr.P.C. Concession of bail is extended to the applicant/accused Muhammad Shah Rukh 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 trial Court.
Needless, to mention here that the
observations made hereinabove are tentative in nature and would not influence the
trial Court while deciding the case of the applicant/accused on merits.
JUDGE
JUDGE
Gulsher/PA