2018 PLP 254 (YLRN)

KHADIM HUSSAIN TUNIO, J.

Through the captioned application under section 21-D of Anti Terrorism Act, 1997 read with section 497, Cr.P.C. the applicant seeks his release on post arrest bail in case FIR No.331/2012, under sections 353/324/427/186/302/34, P.P.C. read with section 7 ATA, 1997, registered at Police Station Aram Bagh, District Karachi South. The applicant approached learned trial Court with the same plea which has been declined by learned Judge of Anti Terrorism Court No.III, Karachi vide order dated 08.06.2017.

2. Brief facts of the prosecution case as unfolded in the FIR are that the complainant along with ASI Ali Hassan was performing his duties while checking the suspects near Sessions Court (South) at about 01:30 a.m. two boys on motorcycle were found in suspicion condition, who were coming from light house side. They on seeing the police party tried to fled away towards the Camble street. It is also alleged that the police party chased up to Pakistan chowk and tried to stop but they made firing at police party in which constable Sikandar Ali also fired in defence. In the meanwhile police mobile of Police Station Aram Bagh also arrived and as a result of firing of culprits ASI Ali Hassan received two fire arm injuries and police mobile was also damaged due to said firing. Police party succeeded to apprehend one of the culprits on the spot who disclosed his name to be Abdul Rasheed and secured .30 bore pistol loaded with one bullet in magazine and one bullet in chamber. Police also secured motorcycle bearing No.KBQ-8352, six mobile phone sets and papers from him. On inquiry apprehended accused disclosed the name of his companion as Irfan Baloch son of Rahim, who succeeded to escape away from the place of occurrence on motorcycle. ASI Ali Hassan was shifted to hospital and apprehended accused was brought at police station. On the basis of statement under section 154, Cr.P.C. of P.C. Khalid Mehmood FIR was lodged against Abdul Rasheed and Irfan Baloch.

3. Investigation was assigned to SIP Tariq Mehmood who conducted usual investigation and after usual investigation report under section 173, Cr.P.C. was submitted. During the investigation accused Abdul Rasheed disclosed the name of his companion as Mohammad Nasir son of Abdul Raheem, who disclosed that he has misquoted the name of Mohammad Nasir as Irfan Baloch. During the treatment ASI Ali Hassan succumbed to injuries in ICU surgical ward of civil hospital. After completion of investigation charge sheet was submitted against the accused while showing Abdul Rasheed in custody and the applicant as absconder.

4. After framing of charge and recording of prosecution evidence death sentence has been awarded to co-accused Abdul Rasheed and case of the applicant kept on dormant file.

5. Learned counsel for applicant has contended that there are general allegations of causing fire arm injuries; that no specific role has been attributed to the applicant; that there is only word of co-accused against the applicant that the applicant is Mohammad Nasir and "Memon" by caste and not Irfan Baloch; that the applicant is in custody since last 17 months and only one witness has been examined by the prosecution in support of its case; that case"of applicant call for further enquiry. Learned counsel has relied upon case law reported as 2009 SCMR 299, PLD 2012 SC 222, 2012 SCMR 1137 and 2017 PCr.LJ (Note) 213.

6. Conversely, learned Deputy Prosecutor General for the State has vehemently opposed the bail plea of applicant while arguing that during the course of investigation name of companion of co-accused Abdul Rahseed was discovered as Muhammad Nasir son of Abdul Raheem and Challan has been submitted in the year 2013 with correct name of the applicant; that applicant is involved in the offence with which is punishable to death and imprisonment for life; that the applicant is not entitled for bail; that the applicant remained absconder for about four years hence, he is not entitled to any indulgence in the bail matter. He has relied upon 2002 SCMR 1381, 2013 SCMR 385, 1999 PCr.LJ 1 and 2003 YLR 1227.

7. Having heard the learned counsel for applicant and learned DPG for the State and perused the record carefully. We are inclined to grant bail to the applicant for the reasons that the investigation has already been completed and case has been challaned; that all the PWs are police officials; that there is no question of tampering with the evidence; that no specific role has been attributed to him in the FIR; that there are general and collective allegations against him in the FIR. The name of the applicant has been disclosed by co-accused Abdul Rasheed, who alleged to have been apprehended by the police at the place of scene. No identification parade of the applicant has been got conducted by the Investigation Officer after his arrest through PWs. The applicant is in custody since last 17 months and trial has not yet been concluded through prosecution has examined only one witness. No other case is pending against applicant. It is settled law that when the case of applicant/ accused call for further inquiry into guilty of accused bail should be allowed to him as a right and such right cannot be refused to him merely on account of his alleged abscondence which is a factor relevant only to propriety. It is well settled law that when the applicant has successfully made out his case for grant of bail the abscondence will not come in his way. In this respect reliance placed upon 2009 SCMR 299 (Mitho Pitafi v. The State), PLD 2012 SC 222 (Qamar alias Mitho v. The State and others), 1985 SCMR 382 (Ibrahim v. Hayat Gul and others) and PLD 1985 SC 182 (Muhammad Sadiq v. Sadiq and others) wherein it has been held that:-- "Right of bail could not be refused to accused merely on account of his alleged abscondance which is a factor relevant only to propriety."

8. In case reported as 2012 SCMR 1137 (Ehsan Ullah v. The State) it has been held that:- "In a case calling for further inquiry into the guilt of accused, bail is to be allowed to him as of right and not by way of grace or concession-Mere abscondence of accused person may not be sufficient to refuse bail to him."

9. With regard to the case law cited by learned Deputy Prosecutor General for the State, there is no cavil with the principle laid down in the referred cases but the facts and circumstances of the referred cases are distinguishable and not applicable in this case.

10. For what has been discussed above, we are of the humble opinion that the case of applicant calls for further inquiry and he has successfully made out his case for grant of bail, therefore, applicant is admitted to bail subject to furnishing of solvent surety in the sum of Rs.500,000/- and P.R. bond in the like amount to the satisfaction of learned trial Court. It is needless to mention here that observations made hereinabove are tentative in nature and shall not influence the mind of the trial Court in any manner whatsoever at the trial. MQ/M-88/Sindh Bail granted.