2013 PLP 2614 (YLR)

AFTAB AHMED GORAR, J.

Applicant Muhammad Zahid son of Taj Muhammad, seeks post-arrest bail in Crime No. 52 of 2011, registered under sections 353/ 324/34, P.P.C. of Police Station, Pak Colony, Karachi West. The bail plea of the applicant earlier was declined by the learned III-Additional Session Judge, Karachi-West, vide order dated 29-4-2013, impugned hereinabove.

2. The facts as is summarized, as is envisaged in the prosecution story are that:-- "Complainant, SIP Rafique Masih, together with subordinate staff, were busy in patrolling within the jurisdiction; received spy information with regard that, two young persons are present in Lyari Trans Park, duly armed with lethal weapons; on such an information police party reached there and encircled both assailant, police party tried to catch hold of assailants; one of them namely Muhammad Zahid started firing upon police party with intention to kill them, SIP and other police personnel to save themselves from the ariel firing in self-defense made firing; in the result whereof apprehended both the assailants who disclosed their names as Muhammad Zahid son of Taj Muhammad and Hanzala son of Abdul Rasheed; due to non-availability of the private witnesses, personal search of the accused was made and from right hand of accused Muhammad Zahid son of Taj Muhammad one T.T.Pistol was recovered and from the fold of paint of accused Hanzala one dagger about 4 inches was recovered; from the place of occurrence two empties of T.T.Pistol and 3 empties of SMG were also secured and sealed at the spot. Police party demanded valid license of recovered lethal weapons but they could not produce, sealed the same on spot and for recovered arms, the act of accused would fall within the definition of section 13-D Arms Ordinance and arrested both the assailant, registered the case"

3. I have heard learned counsel for the applicant and learned A.P.-G. for the State.

4. Learned counsel for the applicant has contended that applicant is innocent and has been falsely implicated in the present case with mala fide intention and ulterior motives; recovered lethal weapons could not sent for expert opinion with regard to its use; section 353, P.P.C. is also bailable and the ingredients thereof are still wondering for its fate; because from either party no one has sustained any bullet injury even there was aerial firing as alleged; complainant is/was duty officer and had acted as complainant in the captioned matter; all the prosecution witnesses are police officials; as such it seems that prosecution has cooked up crew; further in absentia of an independent eye-witness there would have been violation of section 103, Cr.P.C. as the mandatory elements of section 103, Cr.P.C. are missing; in the last learned counsel stress his arguments that post-arrest bail may kindly be granted to the applicant.

5. Learned A.P.-G. vehemently opposes the grant of bail; but has frankly conceded that elements of section 353 and section 324 are missing and are still wondering for its fate; therefore, in the circumstances bail plea of the applicant may be declined as the offence as is alleged in its nature is against the society.

6. Having gathered the respective contentions raised and also gone through the entire material available on the record. It is apparent from the face of record that ingredients of section 353 and section 324 are still wondering; because; no one from either party has received any single injury although there was firing in between the cop and the assailants; even otherwise the police mobile van did not receive a single shot. Apart from above, there is also violation of section 103, Cr.P.C. which is mandatory provision of law; therefore, the incident as alleged had taken place seems to have been not in the odd hours of the night or the midnight; it was approximately 8-00 p.m., at the time of alleged incident; in the city of Karachi at 8-00 p.m., the vicinity peoples will take breathe at the public Parks. No doubt, the offence as is cooked up will render the assailants amenable and the act so did or done as alleged is also against the society. Perhaps, there are series of citations of our Hon'ble apex Courts stretching the elements of sections 353 and 324 P.P.C. In view of the discussions supra, the applicant has made out a fit case of further enquiry therefore: the applicant Muhammad Zahid son of Taj Muhammad is admitted to post-arrest bail, subject to furnishing his solvent surety in the sum of Rs.50,000 (Rupees Fifty Thousand Only) and P.R. Bond in the amount to the satisfaction of learned trial Court. These are the reasons of the short order dated 17-5-2013.

7. The observations made hereinabove are tentative in nature and will not prejudice case of either party at the time of trial. AG/M-113/K Bail granted.