IN THE COURT
OF ASJ V. AT KARACHI CENTRAL
Bail Application in CASE
No. 79/2013
ALI RAZA @ UMAIR ..…… APPLICANT/ACCUSED
VERSUS
The STATE
……………………………. RESPONDENT
FIR No. 131/13
U/S. 353, 324, 394,34 PPC.
P.S.
Gulbahar.
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 complainant stated:
“He is posted at
Madadgar 15, Nazimabad, Karachi, today, they were on patrolling duty alongwith
other employee, PC, M. Hayat 12008, today during patrolling at 1800 hrs. they
were coming from Lasbela Bridge, from one way, at front of habib patti a red
color car was parked, at sitting on driving seated person was being to be
snatched by two persons, with loaded pistol, ridded on motor cycle, on lalkar,
to avoid arrest, with intention to kill, stared firing, my other above said
employee on self defense, counter fired, due to counter fire one person, Slonel
S/o. Pervez, who was being snatched, was injured, one accused was arrested and
one succeeded to escape, and arrested accused was searched one pistol 30 bored with
3 loaded magazines, mobile nokia 101, cash of Rs. 280/- were recovered. Hence this case.
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 show efficiency into the eyes of high officials, and on
non compliance of demanded illegal gratification.
2.
That the
proceedings has been stopped for want of evidence under section 249 Cr.P.C, for
want / lack of evidence by Hon’ble Court VII th. JM Karachi Central, in connected Case No. 2606/2012, U/S. 13-d, A.O., hence the applicant is entitled for concession
of bail. True copy of the said OREDR & RELEASE ORDER is annexed herewith and marked as annexure
“A” & “B” respectively.
3.
That no
incriminating article has been recovered from the applicant/accused and recovery is foisted one, the applicant/accused was arrested from bus stop
waiting for his bus, then suddenly police came and put him in police mobile but
due to non compliance of demanded illegal gratification.
4.
That it is still to be seen as to
which of the parties was aggressor.
5.
That it is the case
ineffective firing by the alleged accused, as per prosecution version, there was a exchange of ineffective firing
between police party and accused persons except one person, Sonel S/o. Pervez, was injured/hurt by the
P.C, M. HAYAT’s Firing.
Relied Upon: 2004 YLR 104.
S. 497(2)---PPC, Ss.
324/353/147/149---Bail grant of---Further inquiry---Allegation against
accused was that when police party raided house of accused for recovery of
narcotics, it was attacked by persons present over there including the accused---it was
ineffective firing by persons present on the spot. 2004 YLR 104.
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.
2005 Cr L J
856.
---S. 497(2)---Case of accused would be covered by
S. 497(2), when case of ineffective
firing. 2005 Cr L J 856.
2000 YLR 2217.
---S. 497---13-d/324/353/34, PPC--Case of ineffective firing. 2000 YLR 2217.
6.
That neither any one received
bullet injury nor any scratch to any member of police party consist of PC M. Hayat
and the complainant, nor any vehicle/motor cycle from both sides hit or damaged in alleged encounter.
Relied Upon: 2012 YLR 178
---S. 497(2)---PPC, 324/353/34---Attempt to commit
qatl-e-amd, assault or criminal force to deter public servant from discharging
of his duty---Bail grant of---Further inquiry---No police official from the police station sustained any sort of injury ; and even their vehicles were not damaged, though the
culprits including the accused had allegedly fire upon them repeatedly---Application of S.324 PPC in the circumstances
needed further inquiry, while the offence
under section 353 PPC was bailable---Police
had completed its investigation and the Challan had also been submitted---Accused wad
granted bail, in circumstances. 2012 YLR 178.
2011 YLR 2060.
---S. 497(2)---PPC, 324/325/353/148/149 & 427---Bail grant of---Attempt to commit qatl-e-amd,
assault or criminal force to deter public servant from discharging of his duty,
rioting, armed with deadly weapon----Police Officials sustained no injury which made the alleged police encounter
doubtful---Matter needed
public inquiry which had not been conducted---Entire case seemed to be doubtful---Bail was granted to the accused in the
circumstances. 2011 YLR 2060.
2008 PCr.L.J. 153
---S. 497(2)---PPC, 324/325/353/148/149---Bail
grant of---Further
inquiry---In the case offences covered by S. 324 PPC attracted the prohibitory clause of S.497 and rest the
remaining offences S. 353 PPC was bailable---Accused allegedly were armed with dangerous weapon but not even scratch
had been received by member of police party---Accused were peasants and were behind for last almost six months---Trial had not been tangible progress---Accused could not retained in custody as a
measure punishment---Accused were admitted to bail in circumstances.
2008 PCr.L.J. 153.
2011 SCMR 954.
---S.
497(2)---PPC, 324/353/148/149---Attempt to commit
qatl-e-amd---Police party escaped completely unhurt notwithstanding the
allegation that they fired in self defence---No fire arm recovered from
accused ---Petitioner had been in detention since July 2009 and was entitled
to bail in circumstances---Accused would be released
on bail in circumstances. 2011 SCMR 954.
7.
That no
empties recovered from place of incident. The alleged recovery
was produced by the complainant in police station, which creates doubt
and false implication, cannot be ruled out. Hence, it is a fit case of further probe in the circumstances. 2011 SCMR 954.
8.
That no
specific role has been assigned by the prosecution in the alleged police en-counter, but the alleged
accused has been booked to show efficiency into the eyes of high officials. As per prosecution,
the I.O. of the case, the non-arrested started firing, with intention, to kill the complainant.
Relied
Upon:
2006 P Cr. L J 629.
---S. 497(2)---PPC, Ss.
302/ 324/ 452/ 440/ 148/ 149/109---Bail grant of---No role was ascribed to the accused except
ineffective firing at the time of occurrence---Accused had not used weapons at all to cause any injury either to the
deceased or to any witness---Yet to be determined whether the accused has
common intention in murder of deceased---Case of accused, thus,
needed further inquiry---Bail
was granted to accused in circumstances. 2006 P Cr. L J 629.
9.
That as per prosecution the
applicant was arrested with pistol loaded with three live rounds, it is strange
a person armed with pistol loaded with three live rounds he kept standing with
no resistance, no repeating Fire by the applicant/accused, the circumstances motioned in FIR create doubt,
and false implication cannot be ruled out. Hence, it is a fit case of further probe in the circumstances.
Relied Upon:
2009 YLR 1122 KARACHI.
S. 497(2)---Penal Code (XLV of 1860), Ss.324, 353, 399, 402, 148 &
149--Bail, grant of--Further inquiry--State Counsel did not dispute that none from the police party had sustained any
injury due to the alleged firing of accused during exchange of fire between
accused and police party---Weapons/arms and ammunition allegedly
recovered from accused and the empties recovered from the spot were not sent by
the Investigating Officer to the Ballistic Expert---All the mashirs of arrest and recovery of
accused were police personnel--Accused had
succeeded to make out a case of further inquiry in their favor within the
provisions of S.497(2), Cr.P.C.---Accused were released on bail, in
circumstances. 2009 YLR 1122 KARACHI.
10.
That the alleged search was made by the complainant himself, no one was said to any independent person to be witness. The alleged recovery was produced by the complainant in police station, So there is violation of mandatory provisions
section 103 Cr.P.C.
Relied
Upon:
No independent witnesses of
recovery PLD 2002 Kar. 113.
Requirements of S. 103
Cr.P.C not completed 2004 YLR 201.
11.
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 while it was day time
1800 hrs., So there is violation of
mandatory provisions section 103 Cr.P.C.
Relied
Upon:
No independent witnesses of recovery PLD 2002 Kar. 113.
Requirements of S. 103 Cr.P.C not completed
2004 YLR 201.
12.
That the applicant is behind bar since his arrest more than nine months.
Relied Upon:
2005 Cr L J [p. 858].
---S. 497(2)---Case of accused would be covered by S. 497(2), when he attributed in
the FIR of ineffective firing---he is behind the bars for the last about seven months and a previous non-convict. Bail allowed. 2005 Cr L
J [p. 858].
2011 MLD 727
---S. 497---PPC,
Ss. 324/353/148/149/188/186---Attempt to commit qatl-e-amd, assault or criminal force to deter
public servant from discharging of his duty---Bail grant of---Further
inquiry---Involvement
of accused in other cases without conviction could not impede the grant of bail---Accused were admitted to bail in circumstances. 2011 MLD 727.
2007 YLR 1727 [p. 1728] A.
---S. 497(2)---PPC, Ss. 353/324/34---Bail grant of----Investigating Officer was directed to appear and disclose as to whether
any case pending against accused but despite providing opportunity, the investigating
Officer has not appeared nor learned counsel for state is in a position to
disclose the pendency of any other case against the present applicant in a case
of ineffective firing. Bail granted. 2007 YLR 1727 [p. 1728] A.
2005 YLR [p. 113] B.
---S. 497(2)---PPC, Ss. 324/34---Bail grant of---Further
inquiry---Accused was alleged to have fired ineffectively on complainant and
his brother---Case of accused was of further inquiry covered by subsection (2)
of S. 497---Investigation in the case
was complete and accused was no more required
for further investigation---Accused was in jail since his arrest---Accused was admitted
to bail in circumstances. 2005 YLR [p. 113] B.
2005 Cr L J [p. 858]
---S. 497(2)---Case of
accused would be covered by S. 497(2), when he attributed in the FIR of ineffective firing---he is behind the bars for the last about seven months and a previous non-convict. Bail allowed. 2005 Cr L J
[p. 858].
2007 YLR 1727 [p. 1728] A.
---S. 497(2)---PPC, Ss. 353/324/34---Bail grant of---Investigating Officer was directed to appear and disclose as to whether
any case pending against accused but despite
providing opportunity, the investigating Officer has not
appeared nor learned counsel for state is in a position to disclose the pendency
of any other case against the present applicant in a case of ineffective
firing. Bail granted. 2007 YLR 1727 [p. 1728] A.
13.
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. 2005 YLR [p. 113] B.
14.
That the applicant is a peaceful
law abiding citizen, he is behind the bar
for the last more than nine months since his arrest, 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.
2007 YLR 1727 [p. 1728] A.
---S. 497(2)---PPC, Ss. 353/324/34---Bail grant of---Investigating Officer was directed to appear and disclose as to whether
any case pending against accused but despite
providing opportunity, the investigating
Officer has not appeared nor learned counsel for state is in a position to
disclose the pendency of any other case against the present applicant in a case
of
ineffective firing. Bail granted. 2007 YLR 1727 [p. 1728] A.
2003
PCr.LJ 1101 Lah
---S. 497(2)---PPC, Ss.---395/411---Bail grant of---Nothing recovered---Non Convicted---Merely due to registration of case could not be held dangerous, desperate or hardened criminal. 2003 PCr.LJ 1101 Lah.
15.
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.
16.
That the applicant/accused is ready
to furnish solvent surety to the entire satisfaction of this Hon’ble Court.
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: 04/07/13.
S M ZUBAIR
Advocate
for the Applicant
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