W/A 23-A (1) A.O.

IN THE COURT   OF   Vth. JM AT KARACHI CENTRAL

Bail Application in CASE No.  268/2013

ALI NAWAZ               ………………………….            APPLICANT

VERSUS

The STATE          …………………………….                      RESPONDENT

FIR No. 83/13

U/S. 23-A (1) A.O.

P.S. New Karachi.

WRITTEN ARGUMENTS FOR BAIL APPLICATION U/S. 497 CRPC

On behalf of the Applicant, above named, it is respectfully submitted that this Hon’ble Court may be pleased to enlarge him on Bail in consideration of the following facts and grounds: 

BRIEF FACTS

As per an FIR:

“The accused was arrested in FIR #. 82/13, U/S. 353, 324/34 PPC, on personal search recovered one TT Pistol 30 Bore No. 8884 along with loaded magazine Two alive rounds, on recovery of weapon case was registered against applicant/accused U/S. 23-A (1) A.O.

GROUNDS

1.                  That the Applicant is quite innocent and falsely implicated in this case and story in this case is false and fabricated by the complainant due to some unknown enmity on non compliance of demanded illegal gratification.

2.                That the applicant was under age about 16 and half years at the time of alleged incident and this case is covered by Juvenile System. It is well settled law that minors are entitled for bail U/S. 497 Cr.P.C, Sindh Children Act 1955  and U/S. 10 Juvenile System Ordinance  2000. The applicant is in jail since his arrest and as per the said Ordinance minor shall be released on bail. Photocopy of Birth Certificate is attached herewith as annexure “A”.

Relied upon: 2012 MLD 1199.

497(2)-Penal Code (XLV of 1860), Ss.392 /34---Robbery---Bail, grant of---Accused had stated that he was less than 18 years of age---No recovery had been shown in report U/S. 173, Cr. P.C.---Said contention deserved due weight---Accused was entitled to concessation of bail in circumstances. 2012 MLD 1199.

Relied upon: PLD 2002 Kar. 18.

---S. 497---Juvenile Justice Ordinance (XXII of 2000), Ss. 2(b) & 7---Bail---‘Child’---Definition---Age of accused according to police was between 17 and 18 years---Such police opinion ex facie was sufficient to attract the provisions of  Juvenile Justice System Ordinance (XXII of 2000),---Accused was entitled to bail---Accused was granted bail accordingly. PLD 2002 Kar. 18.

3.                  That the applicant is in jail since more than three months.

4.                  That the applicant/accused has been granted bail in main case, dated 22-04-2013, by the Hon’ble 5^th ASJ Karachi Central in Bail Application 239/2013, hence the applicant is entitled for concession of bail. True Copy of   Bail Order is attached herewith as annexure “B”.

 

RELIED UPON: 2009 P.Cr.L.J 786.

---S. 497---West Pakistan Arms Ordinance (XX of 1965), S.13 (d)---Bail grant of---Bail granted in main offence cannot be with held in the case arising out of the same transaction. 2009 P.Cr.L.J 786.

---S. 497 & 103---West Pakistan Arms Ordinance (XX of 1965), S.13 (d)--- Bail grant of---Crime was offshoot of main cases registered against accused under Ss.353/324/34, P.P.C., Wherein accused had been enlarged on bail upon observing violation of S. 103, Cr.P.C---Accused was admitted to bail, in circumstances. 2009 MLD 674.

5.                  That no incriminating article has been recovered from the alleged accused/applicant and recovery is foisted one due to non compliance of demanded illegal gratification.

6.                 That the applicant was arrested in FIR #. 82/13, U/S. 353, 324/34 PPC, by the complainant’s Police party and alleged that the accused started firing after seeing police party who in self defense also started Firing but no one was injured in counter firing which makes all story highly doubtful. Hence, it is a fit case of further probe in the circumstances.

Relied Upon: 2008 P Cr.  L J 1371

---S. 497(2)---PPC, Ss. 302 & 324/34---Bail grant of---Further inquiry---Ineffective firing but no empty had been recovered from the point assigned to accused in the site plan---Prima facie  case of accused fell within the ambit of further inquiry entitling him to the concession of bail---Accused was released on bail, in circumstances. 2008 P Cr.  L J 1371.

---S. 497(2)---Case of accused would be covered by S. 497(2), when he attributed in the FIR of ineffective firing. 2005 Cr L J 856.

---S. 497---13-d/324/353/34, Name disclosing by Co-Accused---No identification held--Case of ineffective firing.  2000 YLR 2217

7.                  That the all Mashirs of Arrest & Site Plan are not resident of locality/vicinity but the Police Officials, Subordinates while the place of occurrence is well-populated area of the locality and I.O has not said to any independent person to be witness. So there is violation of mandatory provisions section 103 Cr.P.C.

Relied Upon: 2009 MLD 674,  2004 YLR 201, PLD 2002 Kar. 113.

S. 497 & 103---West Pakistan Arms Ordinance (XX of 1965), S.13 (d)--- Bail grant of---Crime was offshoot of main cases registered against accused under Ss.353/324/34, P.P.C., Wherein accused had been enlarged on bail upon observing violation of S. 103, Cr.P.C---Accused was admitted to bail, in circumstances. 2009 MLD 674.

No independent witnesses of recovery PLD 2002 Kar. 113

Requirements of S. 103 Cr.P.C not completed 2004 YLR 201.

8.                 That the present crime is not punishable with 10 years or R.I or more, hence it does no fall within ambit of prohibitory clause of section 497 Cr.PC.

Relied Upon: 2001 P.CR.L.J 948

---S. 497---West Pakistan Arms Ordinance (XX of 1965), S.13 (d)--- Bail grant of---Challan Completed--- Not falling within Prohibitory Clause. 2001 PCr.LJ 948.

9.                  That investigation has been completed and the challan has been submitted in court already in this case and the applicant no more required for the purpose of investigation.

10.             That the applicant is a peaceful law abiding child/citizen, not a previous convicted nor a hardened criminal and neither he will temper with P.Ws nor will he abscond, as he is permanent resident of Karachi.

11.             That if the accused/applicant is not granted bail he will not be able to defend him properly and he shall be suffered irreparable loss which cannot be measured monetarily and will be humiliated in the eyes of the society.

12.             That the applicant/accused is ready to furnish solvent surety to the entire satisfaction of this Hon’ble Court.

13.             That other ground may be argued at the time of hearing of this bail application.

PRAYER

It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to enlarge him on Bail under the fact and circumstances mentioned above.

Prayed accordingly in the interest of Justice.

Karachi.

Dated: 24/06/13.                                           

S M ZUBAIR

Advocate for the Applicant