ZAFAR alias GUNJA alias ASLAM and another vs THE STATE
This matter comes before the court via criminal bail applications filed by the applicants seeking post-arrest bail in a case arising from an F.I.R. registered for offences including attempted murder and rioting. The core legal question involves determining whether the accused persons are entitled to bail where they are nominated in the F.I.R., implicated by injured witnesses, and alleged to have participated in indiscriminate firing resulting in multiple injuries and a subsequent fatality during a political clash. The court held that the applicants are not entitled to bail, as the offence falls within the prohibitory clause of the relevant criminal procedure provision, specific names are implicated by injured witnesses, and the case does not warrant further inquiry. The key principle laid down is that where accused persons are specifically implicated by injured witnesses for indiscriminate firing forming part of an unlawful assembly resulting in severe injuries, and the offence falls within the prohibitory clause, bail ought to be declined.
- Whether bail should be granted when the accused are specifically nominated in the F.I.R. and by injured witnesses for indiscriminate firing?
- Does a case under Section 324 of the Pakistan Penal Code fall within the prohibitory clause of Section 497(1) of the Code of Criminal Procedure?
- Is an accused entitled to bail on the ground of absence of a specific attributed role when participating in indiscriminate firing with an unlawful assembly?
- Section 324, Pakistan Penal Code 1860
- Section 147, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 169, Code of Criminal Procedure 1898
- Section 497(1), Code of Criminal Procedure 1898
ORDER
1. I would like to dispose of Criminal Bail Application No,327 of 2003 of applicant Khaushnood Butt alias Papoo and Criminal Bail Application No,297 of 2003 of applicant Zafar alias Gunja alias Aslam by a single ordef, as they both arise out of the same F.I.R.
2. The applicants are facing trial in the Court of 1st Additional,. Sessions- Judge, Karachi, West for an offence under sections 324/147/148/149/34, P.P.C. arising out of F.I.R. No,329 of 2002 of Police Station Mominabad.
3. Briefly stated the facts of this case are that complainant Moulana Feroze Uddin Rehmani was Contesting election for National Assembly seat from Constituency No,241 on M.Q.M. ticket. On fateful day i.e, 20-9-2002 he was holding a corner meeting at Altaf Chowk, Orangi Town, Karachi. At about 7-30 p.m. some terrorists of Haqiqi Group consisting of accused Khushnood Butt alias Papoo, Pervaiz alias Jala Bhuna, Rafiq Bangali son of Hafeez, Yousuf Mota, Aijaz, Mahmoodul Hassan, A.S.-I. of Police Station Mominabad and Zafar came there and opened fire upon the gathering. As a result of which seven persons sustained injuries. The injured were removed by the candidate of Constituency No,94 to Abbasi Shaheed Hospital. The remaining participants of meeting took shelter on various places.
4. It is stated that this incident took place due to enmity between M.Q.M. and Haqiqi Group.
5. The F.I.R. of this case was registered by the police on 30-9-2002 at 1-40 a.m: The police took up investigation and submitted challan against the accused in their absence and shown them absconder in the challan.
6. I have heard Mr. Raza Muhammad Raza for applicant Zafar alias Gunja alias Aslam, Mr. Saadat Hassan for applicant Khushnood Butt alias Papoo and Mr. Habibur Rashid learned counsel for State.
7. It is argued by the learned counsel for applicant Khaushnood Butt alias Papoo that no specific part has been assigned to the accused. F.I.R. is delayed by about 6 hours and no explanation is given by the complainant. Accused Mahmoodul Hassan was released by police under section 169, Cr.P.C., therefore, the benefit of his release be given to the present applicant also. It is argued that nothing incriminating was recovered from the possession of accused and no overt act has been attributed to him.
8. It is argued on behalf of applicant Zafar alias Gunja alias Aslam that his name does not figure in the F.I.R. as he is never called as Zafar but his name is. Aslam. He adopted the rest of the arguments of Mr. Saadat Hassan. Reliance is placed upon the cases of Shahid. Naseem v. The State 1998 PCr.LJ 1198, Ikramullah v. Sami Ullah and another 1998 M LD 1184, Muhammad Ishaque and another v. The State 1992 PCr.LJ 594, Gohar Ali and another v. The State 2000 PCr.LJ 1052, Noor ur Rehman v. The State 2000 PCr.LJ 1603, Abdul Saleem v. The State 1998 SCM R 1578, Mehmood Ahmed and 3 others v.
9. The State and another 1995 SCM R 127.
10. Mr. Habibur Rashid learned counsel appearing for State has opposed the bail plea of accused on the ground that their names appear in the F.I.R, and one of the injured namely Ghulam Hussain died in the hospital. The F.I.R. was registered as Crime No,328 of 2002.
11. The record shows that corner meeting was being held by the complainant party when the applicants alongwith other terrorists assaulted the participants. The applicants belong to rival political group. The names of present applicants are appearing in the F.I.R. Injured Muhammad Ali has specifically taken the names of both the accused in his statement whereas injured Shafqat has taken the name of applicant Khushnood. Enmity is a motive for commission of this incident.
12. The applicants opened indiscriminate firing which hit seven persons including passersby. The plea that no specific part has been assigned to applicant has no force as all the culprits armed with fire-arms opened fire as a result of which seven persons sustained injuries. This is a very recent case of year 2002. The case under section 324. P.P.C. is covered by prohibitory clause of section 497(1), Cr.P.C. The case of applicants does not come under the scope of further inquiry. They do not deserve bail which is declined.