IN
THE COURT OF DISTRICT AND SESSION JUDGE
SOUTH AT KARACHI
Cr. Bail Application
No. / 2018
XXXXXXXXX
Son
of Bashir Ali
Muslim,
Adult,
Residents
at Karachi
Presently
confined at
Central
Prision,
V E R S U S
The
State …………………………… Respondent
F I R No: 000 / 2018
Under
Section: 23 (I) A Sined Arms Act
Police Station:
XXXX, Kar (S)
BAIL
APPLICATION UNDER SECTION 497 Cr. P. C
It is
respectfully submitted on behalf of the applicant / accused above named that
this Honorable Court may be pleased after consideration the following facts and
grounds enlarge the applicants / accused on bail, hence this application, the
facts and grounds are:
F A
C T S:
As per the story disclosed in
the alleged F I R by the prosecution, that on 11.06.2013, at about 1900 Hours,
FIR No:XXX/2013
has been lodged at
Chakiwara Police Station, Karachi, Under Section 23(I)A
Sindh Arms Act, the brief facts as narrated in the alleged F I R are“ that the
alleged incident took place at 1740…. Hours on dated: 11-06-2013, the F I R is
“With reference to case crime No. 57/2013, Under Section 353/324/34 PPC in
which already arrested accused Syed Zahid Ali son of Bashir Ali at the time of
his arrest at Al-Falah Road Corner Gali No. 9, Bihar Colony, Lyari, Karachi. In
presence of witnesses PC Ahsan ul Haq-23114, 10840 recovered from right hand of
above accused on Pistol 30 Bore No. SA-9098 with magazine, one round in chamber
and 3 rounds alive loaded magazine for which license was demanded from the
accused but he did not produce, therefore, accused was duly arrested for
offence Under Section 23 (I) A Sindh Arms Act and recovered arms sealed at the
spot and the above case is registered against the accused. Investigation will
be conducted by the PSIO of Police Station Chakiwara. Copies of the FIRs will
be distributed according to law.
On
the basis of above report, the Applicant/ accused was arrested and the
concerned police after his arrest started usual investigation in the matter and
after completing investigation, the Applicant/ accused has been remanded to
judicial custody and rotting in jail without any fault on his part, hence the
instant bail application is being submitted on behalf of the Applicant /
accused Inter- alia on the following grounds:-
G R
O U N D S:
1.
That the applicant /
accused is quite innocent and falsely implicated in the alleged F I R.
2.
That the applicant /
accused has not been committed any offence as alleged.
3.
That the investigation
has been completed and the applicant is in judicial custody and his person is
no more required for further investigation by the Police.
4. That
the so called incident took place on 11-06-2013 at about 1740 while the F I R
has been lodged on 11.06.2013 at about 1900 Hours with the delay of about one
hour and 20 minutes without any explanation but the complainant as well as the
police did not describe the delay which shows the mala fide intention of the
complainant as the complainant and the Police Officials that they made a false
case against the present applicant / accused. It is held by the superior courts
time and again that if any delay was not describe by the complainant or even by
the police, the false implication of the accused can not be ruled out or it s
sufficient ground for grant of bail to the accused.
5. That
the FIR has been lodged with a delay of one hour and 20 minutes without any explanation
of delay and in view of the above
facts the case of applicant/ accused is highly doubtful and requires
further inquiry.
6. That the place of alleged incident is a
thickly populated area but the complainant as well as the police has failed to
obtain their statements and not fulfilled the requirement of investigation
hence the matter falls for further inquiry as the superior courts held time and
again that the basic principle is bail not jail.
7. That
the circumstances of the alleged offence makes the case for further
enquiry as nothing
has been recovered
from the possession of the present applicant/ accused regarding the
alleged arms and ammunition.
8. That the ingredients of Section
Under Section: 23 (I) A Sined Arms Act are missing and no any prima
facie case has been made out against the applicant/ accused and there are
plethora of rulings of the Superior Courts when it is held that its a case of
no evidence. As held in a case law reported in P L J 1998 Cr. C (Pesh) at
Page No. 802 “ When ever reasonable doubt arises regarding participation
of accused in commission of crime he shall be entitled to concession of bail
not as a matter of grace but as a matter of right, because there is wide
difference between jail life and free life. Bail can not be with held as a
punishment.”
9.
That the offence as alleged does not fall within
the ambit of punishment for life, death
or more then 10 years as in a Case
Law
Reported
in 1993 P. Cr. L. J at page No: 446 and 1992 P . Cr . L
J at page No :2086 “Grant of
bail in a such cases is a rule and its refusal shall be an exception .Basic
principle is bail and not jail.”
10.
That the
applicant/ accused is neither desperate, dangerous, nor hardened criminals
neither previously involved in any criminal activities nor convicted.
11.
That no person could sustain
any injury either from general public or from accused persons and from police
personals as well, while on the point of recovery of empties, the prosecution
is totally silent, now the question is whether the alleged incident and the
alleged firing took place or not which makes this case is of further inquiry
into the guilt of the Applicant/ accused.
12. That there is no evidence and no role has been assigned
against the applicant/accused.
13.
That the applicant /
accused is law abiding Citizen of Pakistan and there is no any possibility of
his abscondance from the case nor any likely hood of tampering with the witness
of the prosecution as the witnesses in this case are set up and interested.
14.
That the case as made out
by the Prosecution appears to have been foisted upon the applicant / accused
otherwise there is nothing even to connect the applicant / accused with the
alleged offence.
15.
That the applicant/
accused are ready and willing to furnish sound and solvent surety for the
satisfaction of this Honorable Court, if enlarge on bail.
16.
That the investigating
officer as well as the complainant himself violated the mandatory provision of
103 Cr. P. C and failed to collect the independent witness while the area from
where the complainant shown the recovery / arrest of the applicants / accused
is a thickly populated area but he malafidely with ulterior motive avoided to
take independent witnesses for the recovery / arrest of the applicants/ accused
which is mandatory in law.
17.
That the
investigating officer as well as the complainant himself violated the mandatory
provision of 103 Cr. P. C and failed
to collect the independent witnesses
while the area from where the complainant shown the recovery / arrest of
the applicants / accused is a thickly populated area but he malafidly with
ulterior motive avoided to take independent witness for the recovery / arrest
of the applicant which is mandatory in law as the superior courts held in the
case law 1994 P. Cr. L. J at page
No: 823 “ Search in presence of
witness is essential , if the recovery is to be effected from a house or in a
residential area , when the respectable of the locality are suppose to be
present.”
18. That the alleged recovery of
the police officer is highly doubtful as he failed to take independent witness
of recovery and arrest as held by the
Superior Court in case law 1994 P. Cr. L. J at page No: 403
“Non-compliance
of section 103 Cr. P. C in the absence of an explanation by the investigating
officer had made the search doubtful.”
19.
That
the whole search made by the police is invalid
as alleged recovered articles not seized in presence of the independent witness
as held in 1995
P. Cr. L. J at page No: 142 “Search proceedings
have taken in the absence of the two respectable persons of the locality were violated
of the mandatory provision of section 103 Cr. P. C which being an illegality
had rendered the entire search proceeding invalid.”
20.
That the material
available on record did not show the guilty of the present applicants / accused
even though the prosecution has failed to collect any private witness which
create a huge doubt in the story of the prosecution hence the applicant have
benefit for granting his bail because the applicant is still in judicial
custody and if after the conclusion of the case the applicant acquitted then
who provide the loss or damages to the applicants / accused for their days
suffered in the jail, as the Superior Court held in a case law 1995 P Cr. L. J
at page No:488 “Accused person until and unless found guilty and convicted must
be presume to be innocent. Bail cannot be withheld as a punishment, because in
a case under trail prisoner is ultimately found innocent and is acquitted, no
compensation whatsoever can be offered to him either by the State or the
Society for the period which he has been unnecessarily remained in jail.”
21. That if gone through the remand reports or all relevant
papers which the Investigation Officer produced at the instance on remand of
the present applicants / accused nothing has to be shown that the investigating
officer has produced the alleged recovery of the T T Pistols 30 Bore along with
the alleged live cartages and hand grenade
before the Honorable Court, hence violated the main provision i.e Section
07 (iii) of the Arms Ordinance which says that “ All persons apprehended
by, or delivered to, a police officer and all arms, ammunition and military
stores seized by or delivered to any such officer under this section shall be
taken without unnecessary delay before a Magistrate.”
22. That
it is further submitted that it is a matter of record that the I O of the
case has failed to file challan / charge sheet against the Applicants / accused within the prescribed
time, as such he has violated the terms
and condition of the mandatory provisions of law as well as disobeyed the
orders of this Honorable Court. As held by the SINDH HIGH COURT AT KARACHI in Cr.
Acquittal Appeal No. 85 of 1997 fixed for hearing on 22nd day of
September and decided on 23.04.2004 by the Honorable Full Bench headed by Mr. Justice Ghulam Nabi Sumroo, Mr Justice
Ghulam Rabbani and Mr. Justice Wahid Bux Barohi held that “ delay in filing
of challan / charge sheet under section 173 Cr. P. C in a criminal case by the
police against the accused person shall ISPO
FACTO VITIATE trail of an accused and / or end in acquittal on that ground.
23.
That other
ground will be urged at the time of hearing of this bail application with the
prior permission of this Honorable Court.
P R
A Y E R
It is therefore prayed on
behalf of the applicant / accused above named that this Honorable Court may be
pleased to admit the bail of the applicants/ accused and enlarge them on bail
in the interest of justice.
Dated: .06.2018 ADVOCATE FOR THE APPLICANT
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