' This application for bail has been presented on behalf of accused No,1 Akbar son of Sher Muhammad and No,2 Saifullah son of Ahmad, who are facing trial for offence under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 before the learned Sessions Judge, Karachi South, vide Crime No,105 of 1990 at Police Station Kalri.
2. The prosecution case as per F.I.R. Lodged by S.I. Muhammad Ali Rind, Special Team, S.D.I.
Baghdadi on 31-3-1990 at 14-00 hours is that on that day at 13-00 hours upon receiving a spy information to the effect that a vehicle bearing registration No,LSA 2183 carrying liquor of foreign origin will pass from Maripur Road, the complainant along with certain other Police Officers and officials reached Juma Balouch Road, near P.S.O. Petrol Pump at 12-00 hours. At about 13-00 hours, a vehicle bearing above number came on the Maripur Road, which was asked to stop by means of signal, but the driver turned the Jeep towards Juma Balouch Road. The persons sitting in the Jeep opened fire on the police party, which also fired in self-defence. It resulted in injuring one of the culprits, namely, Muhammad Yousuf. Police succeeded in catching hold of the applicants above- named and the injured co-accused Muhammad Yousuf. The police party secured one loaded Klashnikov from co-accused Muhammad Yousuf, the magazine containing 10 live bullets and two empty cartridges. Some cartons of foreign liquor of the given numbers were also secured through Mashirnama signed by S.I. Khalid Javaid and A.S.I. Haq Nawaz.
3. Bail application presented before the learned trial Court has been rejected with the observation that the applicants are alleged to be transporting , intoxicant, the provisions of Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 are applicable to the case and that it was still a fresh case.
4. I have heard Mr. M. Ilyas Khan, Advocate for the applicants and Mr. Shaukat Zubaidi, learned AA.- G. For the State.
5. It was submitted by M. Ilyas Khan that out of the present incident, two separate cases, one under the Customs Act and the other under section 307/34, P.P.C. Have also been separately registered.
The applicants have been granted bail under section 156/89 of the Customs Act by the Special Judge Customs Karachi and by the learned Sessions Judge in the other case, although, the sentence provided in section 307 is life imprisonment. The counsel submitted that it is thus evident that the prosecution itself is not definite as to whether the alleged offence falls under the Customs Act or the Hudood Ordinance and as such it is a case which falls in the category of further inquiry.
In support of his contention, he placed reliance on 1987 MLD 3023 and 1988 P Cr. L J 369. The Mashirnama of the alleged recovery has been signed only by the police officials although the offence was alleged to have been committed in a busy locality, where thousands of people were available at the relevant time. No overt act has been attributed to any of the two applicants.
6. Learned A.A.-G. Also did not oppose the bail applications.
7. I find force in the contention of the learned counsel for the applicants.
' The only case against the applicants appears to be that they were present in the Jeep from where the firing was done at the police by co-accused Muhammad Yousuf and the foreign liquor was recovered. It is admitted by the learned AA.-G. That two other criminal cases referred to above have also been registered against all the accused persons including applicants. It is, therefore, obviously a case of further inquiry in respect of the offence allegedly committed by the accused.
The two above referred authorities cited by the learned counsel for the applicants appear to be prima facie applicable to the facts of the instant case.
8. Under the aforesaid facts and circumstances of the case, I find that it is a fit case to enlarge the applicants on bail. I, therefore, order their release on bail subject to their furnishing a surety in the sum of Rs,50,000 each with P.R. Bond in the like amount to the satisfaction of the learned trial Court.
9. The above are the reasons for the short order, dated 30th April, 1990.