TARIQ KHAN Versus State
ORDER
AMJAD ALI SAHITO, J.--- Through the instant bail application, applicant/accused above-named seeks pre-arrest bail in Crime No.91/2018 registered at Police Station Shahrah-e-Faisal, Karachi for the offence under section 302/34, P.P.C. read with Section 7 of the Anti-Terrorism Act, 1997, after his bail plea along with co-accused has been declined by the learned Judge, Anti-Terrorism Court No.XVI, Karachi vide order dated 12.10.2018.
2. Brief facts of the prosecution case are that on 18.02.2018 complainant Sher Muhammad son of Muhammad Fazil was lodged the FIR at Police Station Shahrah-e-Faisal, on the basis of his statement recorded under section 154, Cr.P.C. passed in Criminal Petition No.203/2018 by the learned VIIIth Additional Sessions Judge, Karachi East, stating therein that on 18.02.2018 at 1530 hours the complainant was residing at the abovementioned address and he has six children and originally a resident of Sahiwal. On 20.01.2018 in between 6:00 to 06:15 a.m. son of the complainant Muhammad Maqsood aged about 27 years, who by profession was tailor, went outside from is house along with his friend Raul, who by profession is a rickshaw driver, he brought one passenger and dropped him at Airport, his son boarded with both of them in rickshaw. At about 10:00 a.m. the brother of Rauf reached in their house, upon which her daughter Taisar Zainab opened the door, the brother of Rauf informed his daughter that he has received sometimes ago a telephonic call that Maqsood has been brought in Emergency Ward of Jinnah Hospital, his daughter Tayaba along with her two sisters Zahra and Zubaida reached at about 10:30 hours at Jinnah Hospital and enquired from reception that whether any person on the name of Maqsood has been admitted in the hospital, upon which the staff of the hospital replied that no. After hearing this fact, near to the gate of the ward from one police official his daughter Tayaba and Zehra enquired about Maqsood, upon which police official replied that he has knowledge about Maqsood, who has been brought in the hospital. According to that police official, Maqsood is famous terrorist and dacoit, who has been killed during dacoity at Faisal Base near Shahrah-e-Faisal in a police encounter, upon hearing such fact, his daughters went to the reception ward and enquired from the staff that whether Rauf patient has been admitted in the hospital to confirm the fact that the police official who is standing on gate was stating about Maqsood his son or about another Maqsood. The staff disclosed that Rauf has been admitted in Kamreen Ward and pointed out towards the bed, his daughters reached towards Rauf, who was in conscious condition, his daughters, again and again, asked a question from Rauf that who has killed Maqsood, upon which Rauf time and again replied that police has killed him. Thereafter, it was confirmed that the police official standing on the gate was stating about his son Maqsood. On the day of the incident, he was present in his native city Sahiwal where the dead body of his son was brought for burial purpose. After completing all the formalities, the complainant reached on 25th January at Karachi and on 26th January he moved an application for registration of FIR against all the police officials, who on 20.01.2018 were present in police encounter at Shahrah-e-Faisal near Faisal Base. As per his information, the names of these police officers are ASI Tariq Khan, PC Abdul Waheed and PC Shaukat Ali. This is his statement, which he heard is true.
3. Learned counsel for the applicant/accused mainly contended that the applicant/accused is innocent and has been falsely implicated in the instant case; that the complainant is not the eye-witness of the incident; that first FIR was registered by the police in which the complainant of Crime No.41/2018 disclosed that the applicant/ accused along with other police officials were on patrolling duty where they noticed one car bearing registration No.BDP-211 of Toyota Corolla gave signal to stop, but they accelerated its speed and started firing upon the police party with intention to kill them, upon which the police also made fire in their defence and resultantly the tire of the car was burst and the accused came out from the car and ran away towards airport and tried to stop rickshaw, but the rickshaw did not stop, due to which accused persons fired upon them, resultantly, one Maqsood became injured; that the complainant has neither implicated the present applicant/accused in the commission of the offence nor any specific role has been assigned to him in the present FIR; that in this case three accused person, namely, Muhammad Shaukat, Waheed Ahmed and Akbar Khan have been granted bail by the learned trial Court vide orders dated 24.11.2018 and 19.02.2019 respectively and the bail application filed by the present applicant/accused before the learned trial Court has been dismissed on the sole ground that he has participated in the commission of offence; that 11 prosecution witnesses have been examined by the learned trial Court and four witnesses have been given-up by the prosecution, hence total 15 witnesses have been examined and they have not implicated the present applicant/accused with the commission of the offence; that it is settled proposition of law that at bail stage only tentative assessment is to be made; that since the co-accused have been granted bail by the learned trial Court, therefore, rule of consistency is applicable to the present case and the present applicant/accused is also entitled to the concession of bail. He lastly prayed for confirmation of the pre-arrest bail granted to the applicant/accused by this Court. Learned counsel for the applicant/accused in support of his arguments has relied upon the cases (1) Mst. Sughran Bibi v. The State (PLD 2018 SC 595), (2) Government of Sindh through the Chief Secretary, Karachi, and 4 others v. Raeesa Farooq and 5 others 1994 SCMR 1283, (3) Syed Muhammad Firdaus and others v. The State 2005 SCMR 784, (4) Syed Amanullah Shah v. The State and others PLD 1996 SC 241, (5) Muhammad Mushtaq and another v. The State and another (2007 PCr.LJ 1542), (6) Asfandyar and another v. Kamran and another (2016 SCMR 2084) and (7) Rehmatullah v. The State and others (2011 SCMR 1332).
4. On the other hand, learned counsel for the complainant, while supporting the dismissal order passed by the learned trial Court, has contended that the applicant/accused has involved in the commission of offence, as being the police official, he must have to protect the citizen instead of killing them; that the specific role has been assigned against the present applicant/accused with the commission of offence; that the learned trial Court has rightly dismissed the bail application of the applicant/accused, as the present applicant/accused is the main accused, who has fired upon the deceased and resultantly he died. He lastly prayed for dismissal of the instant bail application. In support of his contentions, learned counsel for the complainant has relied upon the cases (1) Akmal Masih and others v. Salamat Masih and 4 others (1988 SCMR 918), (2) Mian Dad v. The State (1992 SCMR 1418), (3) Malik Muhammad Iqbal and others v. The State (2005 PCr.LJ 768), (4) Nasir Muhammad Wassan and another v. The State (1992 SCMR 501), (5) Rana Muhammad Arshad v. Muhammad Rafique and another (PLD 2009 SC 427) and (6) Muhammad Asghar Moghal v. The State (PLD 2006 Karachi 244).
5. Learned Asst. Prosecutor General Sindh has also adopted the arguments advanced by the learned counsel for the complainant and has contended that the applicant/accused is involved in the heinous offence, which falls within the prohibitory clause, hence he is not entitled to the confirmation of pre-arrest bail. In support of his submissions, he has relied upon the case of Muhammad Nawaz v. The State (2002 SCMR 1381).
6. We have heard the learned counsel for the parties and perused the record with their able assistance. It is an admitted position that the complainant is not the eye-witness of the incident and only PWs Abdul Rauf and Asim Muneer, trainee Engineer posted at PNS Karsaz, have witnessed the incident and they both have not implicated the present applicant/ accused with the commission of the offence. The role assigned against the applicant/ accused is general in nature, which will be determined at the trial. The next contention of the learned counsel for complainant that the applicant/accused has shown in the CCTV footage while committing the alleged offence. Conversely, learned counsel for the applicant/accused contended that mashirs of the CCTV footage have not implicated the present applicant/ accused with the commission of the offence. In the case in hand, 11 prosecution witnesses have been examined by the learned trial court and four witnesses have been given up by the prosecution and total 15 witnesses have been examined and the trial is at the verge of conclusion as some witnesses including I.O. of the case are yet to be examined. In the case of Rehmatullah v. The State (2011 SCMR 1332) wherein the Hon'ble Supreme Court of Pakistan has held as under: -
"3. Heard. The petitioner was granted bail on 21-11-2008, which was cancelled by the learned High Court on 19-3-2009 when according to the order itself the trial was at the verge of conclusion. Learned Additional Prosecutor-General stated that now only one or two witnesses are yet to be recorded. The courts should not grant or cancel bail when the trial is in progress and proper course for the courts in such a situation would be to direct the learned trial Court to conclude of the case within a specified period. Reference may be made to Haji Mian Abdul Rafique v. Riaz ud Din and another (2008 SCMR 1206). We find that the impugned order was passed in violation of the law, therefore, we cannot subscribe to it. In view whereof, we are persuaded to allow this petition and direct the learned trial Court to conclude the trial of the case expeditiously.
4. For the foregoing reasons, present petition is converted into appeal, allowed and bail granting order dated 6-4-2009, passed by this court, is confirmed. However, learned trial Court is directed to conclude the trial of the case within a period of two months from the date of receipt of copy of this order."
7. It is the well-settled principle of law that the deeper appreciation of evidence is not permissible at the bail stage and tentative assessment is to be made. The reliance in this context is made to the case of Mehmood Akhtar v. Nazir Ahmad (1995 SCMR 310).
8. Having concluded above and while relying upon the case laws as cited by the learned counsel for the applicant, we find that the learned counsel for the applicant has made out a case for further enquiry in terms of subsection (2) of section 497, Cr.P.C. Consequently, the interim pre-arrest bail granted to the applicant/accused by this Court vide order dated 05.11.2018 is hereby confirmed on the same terms and condition. However, the learned trial Court is directed to conclude the trial of the case within a period of two months from the date of receipt of a copy of this order. The applicant/ accused is directed to attend the trial Court regularly if the applicant/ accused fails to appear before it, the trial Court would be at liberty to take action against him in accordance with law.
9. The case-laws cited by the learned counsel for the complainant are distinguishable to the facts and circumstances of the present case.
10. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the learned trial Court while deciding the case of the applicant on merits.
MQ/T-10/Sindh Bail confirmed.