JOHAR HUSSAIN Versus State
ORDER
ABDUL MAALIK GADDI, J.--- Accused/Applicant namely, Johar Hussain involved in case FIR No.981 of 2012, under sections 302/ 324/353/427/34, P.P.C. read with section 7 of Anti-Terrorism Act, 1997 at Police Station Gulshan-e-Iqbal, Karachi, after being refused concession of bail by the Anti-Terrorism Court-VI, Karachi, has come to this Court for the same relief.
2. The allegations against the applicant/accused is that on 25.12.2012 at 1400 hours Moulana Orangzeb Farooque along with his escort left his house for Masjid Siddique Akbar. In that cavalcade his car was on the lead, Moulana's Car in the mid, whereas, the security protocol was on the follow and when they reached near Moti Mehal, suddenly, some terrorists attacked upon them. Three assailants on 125 motorcycle came in front and opened fire at them. His security guards also made fire in self-defense. He has noticed that some assailants had launched attacked on Molana Sahab's car and the police mobile. The firing ensued for a couple of minutes and afterwards all the assailants escaped towards the Gulshan Chowrangi. In aftermath he saw that Molana Sahab had sustained gunshot wounds, whereas, his driver had been killed. Two private security guards and four police men had sustained injuries. He immediately called their General Secretary Dr. Fayaz and informed about the incident who reached in ten minutes and so also ambulances also arrived. The injured and the dead bodies were shifted to Liaquat National Hospital. Molana Orangzeb was shifted in the car of Dr. Fayaz and took him to the hospital. On reaching the hospital he came to know that some of the private security guards and police men were brought dead on arrival. Since Molana had received single gunshot wound, therefore, he was treated and discharged after a couple of days. On 27.12.2012, he along with Dr. Fayaz went to Police Station Gulshan-e-Iqbal and lodged the instant FIR.
3. Mr. Moulvi Iqbal Haider, learned Counsel for the applicant/ accused has contended that applicant/accused is innocent and has been falsely implicated in this case by the complainant due to ulterior motives; that the whole prosecution story is false, baseless and fabricated as the complainant has made contradictory statements during his examination and cross; that identification parade held before the concerned Judicial Magistrate did not fulfill all the legal requirements, hence, the same is highly doubtful, so the case of present accused/applicant is fit for further inquiry; that applicant/accused is behind the bars for more than six years, therefore, applicant/accused may be granted bail on the ground of delay in conclusion of trial.
4. Conversely, Mr. Abdullah Rajput, learned Deputy Prosecutor General, Sindh has vehemently opposed this bail application on the ground that identification parade of the accused held before the concerned Magistrate, where the prosecution witnesses correctly identified the accused. He further argued that in this matter, prosecution has examined ten (10) witnesses including complainant and injured, who have supported the prosecution case. Prima facie, shows the involvement of applicant/accused in this case.
5. We have heard the learned counsel for the parties at considerable length and have also examined the police file, so made available before us.
6. It is settled principle of law that at bail stage, deeper appreciation of evidence cannot gone into, but a bird eye view is to be taken from tentative assessment of the material available on record by the Court to satisfy prima facie, whether the applicant/accused is connected in the commission of offence or not. Herein this case, the alleged incident took place on 25.12.2012, whereas, the same was registered on 27.12.2012 by the complainant Muhammad Nasir. No doubt that there is a delay of two days in lodging of FIR, but delay, if any, has been plausibly explained in FIR. On perusal of challan sheet, it reveals that during alleged incident, six innocent persons namely, (i) PC Arshad Khan, (ii) Abdul Wakeel, (iii) Obaid-ur-Rehman, (iv) PC Imran Khan, (v) PC Waheed and (vi) PC Saleem, were lost their lives, whereas, three persons namely, Muhammad Nasir (complainant), Molana Orangzeb Farooqui and ASI Ashfaq Cheema were sustained bullet injuries. No doubt, the name of present applicant/accused is not mentioned in FIR, but it also reveals from the record that applicant/ accused was arrested on 29.01.2014 and one 9 mm pistol was recovered from his possession in presence of mashirs namely, PC Jawed Akhtar and ASI Muhammad Aslam, who have no inimical terms with the applicant/accused.
7. It is noted that after the arrest of the applicant and during identification parade held on 14.02.2014 before the Civil Judge and Judicial Magistrate-IV, Karachi (East), where complainant and other witnesses have correctly identified the present applicant/accused in the commission of offence, in which aforesaid six innocent persons have lost their lives. Prima facie, shows the involvement of the applicant/accused in this case, which appears to be serious and heinous in nature.
8. It is argued by learned Counsel for the applicant that in this matter out of thirty nine (39) witnesses, ten (10) prosecution witnesses have been examined by the trial Court, but on perusal of their evidence, it reveals that they are contradicting each other on material particulars of the case, therefore, he was of the view that in view of these contradictions, applicant/accused is entitled for benefit of doubt even at bail stage. We have, however, not felt persuaded to agree with the argument so advanced by learned Counsel for applicant in this regard for the reasons that in this matter trial Court has already made substantial progress in recording the evidence of ten (10) prosecution witnesses, including complainant and injured. It appears that case has been entered into advance stage of trial and at this stage, if we discuss the contradictions in between their evidence, it would amount to discuss the matter on merits, which is not permissible at this stage.
9. It is also argued by learned Counsel for applicant that applicant/accused has been arrested in this case on 29.01.2014 and since then, he is behind the bars, but trial could not be concluded, therefore, he has prayed that applicant/accused is entitle for grant of bail in non-conclusion of trial within stipulated period. We are again not convinced with this argument of learned Counsel for applicant for the reasons that in this matter as per diary sheets dated 05.12.2019, 16.12.2019, 26.12.2019 and 14.01.2020, so made available before us, it appears that Counsel for applicant did not appear before the trial Court on aforesaid dates of hearing, therefore, in absence of Counsel for the applicant/accused before the trial Court on the relevant dates, it cannot be held that delay has been caused on the part of prosecution. In this regard, we are supported with the case of Babar Hussain v. The State and others reported in 2016 SCMR 1538.
10. As observed above, in this matter trial Court has already recorded evidence of ten (10) prosecution witnesses, thus, it appears that trial has entered into an advance stage of the case, therefore, in this peculiar facts and circumstances of the case we are of the view that trial Court has rightly rejected the bail of the applicant/accused through impugned order and we also see no reason to interfere with the impugned order; thus, this bail-application stands dismissed.
11. Before parting with this order, we would like to mention here that observation, if any, in this order is tentative in nature and shall not affect the merits of the case. Since in this case, six (6) innocent persons have lost their lives, therefore, trial Court is directed to proceed the matter expeditiously and decide the same as early as possible as per law and no unnecessary adjournment shall be granted to either side; so also, compliance report be submitted to this Court through MIT-II.
12. These are the reasons of our short order of even date, which was in the following terms:-
"Parties" advocates have been heard at length. They have concluded their arguments. For the reasons to be recorded later, instant criminal bail application is dismissed along with listed application."
JK/J-12/Sindh Application dismissed.