MUHAMMAD AQEEL alias TAPLA vs The STATE

ORDER

' NAIMATULLAH PHULPOTO, J.---Applicant/accused Mohammad Aqeel alias Tapla seeks bail in Crime No,385 of 2011 registered on 25-9-2011 at Police Station New Karachi Industrial Area under sections 365/511/324/34, P.P.C.

2. Brief facts of the prosecution case, as disclosed in the F.I.R. Are that on 3-9-2011, complainant along with his friend P.W. Abid was returning on motorcycle from the house of his maternal uncle.

At 1130 hours, they reached at Bus stop No,7, Sector 11/G, New Karachi, where it is alleged that four accused persons namely, (1) Abdul Kathiawari (2) Mohammad Bengali (3) Javed Jabba and (4) an unknown person appeared on two motorcycles. They stopped the motorcycle of the complainant and issued threats to him. P.W Abid due to fear succeeded to run away from the place of incident.

Accused gave beating to the complainant due to which his right leg was fractured. It is further alleged that accused by show of force attempted to kidnap the complainant. In the meanwhile, a car having its headlights on, appeared on the road and culprits drove way. Brother of the complainant namely Sabir Shah arrived there and took complainant to the Abbasi Shaheed Hospital. He did not go to the Police Station for lodging the Report due to fear of the culprits.

However, F.I.R. Was lodged on 25-9-2011 vide Crime No,385 of 2011 at Police Station New Karachi Industrial Area under sections 365/511/ 324/34, P.P.C.

3. During investigation name of the present accused was disclosed by co-accused Javed Jabba on 19th September 2011. Further statement of the complainant was recorded on 26-9-2011. After usual investigation challan was submitted against the present accused and others under section 512, Cr.P.C. For offences under sections 365/511/324/34, P.P.C. Read with section 7 of the ATA 1997.

4. Bail application was moved on behalf of the applicant/accused before Anti-Terrorism Court No,II, Karachi, the same was rejected vide order dated 25-10-2012.

5. Mr. Muhammad Ali Waris Lari learned counsel for the applicant/accused contended that name of the applicant/accused did not transpire in the F.I.R., so also his description. Further statement of the complainant was recorded after considerable time of the lodging of the F.I.R. Further statement has no evidentiary value and admission made by co-accused during investigation is inadmissible in evidence. Nothing incriminating was recovered from the possession of the applicant/accused and case requires further enquiry. In support of his contention he has placed reliance upon the case reported as ABDUL QADIR MOTIWALA v. THE STATE (2000 PCr.LJ 1734).

6. Mr. Saleem Akhtar Buriro Additional Prosecutor General argued that applicant/accused has been involved by co-accused Javed Jabba in his statement during investigation. He has submitted that there are reasonable grounds to believe that the applicant/accused has committed the offence, which falls within the prohibitory clause.

7. From the perusal of the F.I.R., further statement of the complainant and other material collected during the investigation, it transpires that applicant/accused has been involved in this case on the basis of the admission made by co-accused during investigation and on the basis of the further statement made by the complainant after considerable time of the lodging of the F.I.R. Prima facie, there is no direct evidence against the applicant/accused regarding the commission of the offences. Under Article 38 of the Qanun-e-Shahadat (10 of 1984), no confession made to a police officer shall be proved as against a person accused of any offence, reliance has been placed on ABDUL . QADIR MOTIWALA v. THE STATE (2000 PCr.LJ 1734 (D.B), in which it is held that confession made before a person in authority and confession made against co-accused was inadmissible and such a confession is hit by Article 38 of Qanun-e-Shahadat, 1984. Evidentiary value of further statement made by complainant is yet to be determined at trial.

8. For the above stated reasons, we have no hesitation to hold that case against the applicant/accused requires further enquiry, therefore concession of bail is extended to the applicant/accused subject to his furnishing solvent surety in the sum of Rs,200,000 (Rupees Two lacs) and P.R bond in the like amount to the satisfaction of the trial Court. Needless to say that these observations are tentative in nature and would not influence the trial court.

9. These are the reasons for our short order announced by us today morning.