' By this order I intend to dispose of both the bail applications, which is outcome of Crime No,134/95 of Police Station North Nazimabad, Karachi.
2. The brief prosecution story, as mentioned in the F.I.R., is that Sub- Inspector Abbas Ali Shah, S.H.O., Police Station North Nazimabad, Karachi reported at 00-30 hours on 14-4-1995 stating therein that he along with A.S.I. Shafique Ahmed Khan, A.S.I. Kamal Naseem Siddiqui, A.S.I. Muhammad Nadeem, A.S.I. Taj Muhammad and other subordinate police officials were busy in investigation of Crime No,30/95 under section 302/34, P.P.C. Of the same police station. When they reached at Block "D' area North Nazimabad, Karachi they received spy information that six persons duly armed were present near Bungalow No,C-33, Block "D", North Nazimabad, Karachi with intention to commit dacoit in any bungalow. On receiving this information the police party along with witnesses Raja Abdul Hameed and Tariq Jawaid reached near the bungalow and they surrounded the area, all the culprits had hidden themselves in the darkness and started firing on the police party. In defense the police party also fired. Police caught hold of five persons, whose names they later on came to know were Shaikh Hassan alias Shaira son of Bashir Hassan, Muhammad Jamil son of Muhammad Din, Muhammad Akbar son of Fateh Muhammad, Muhammad Ghaffar alias Baido son of Muhammad Yousuf (applicant) and Raja Muhammad son of Raj Muhammad (applicant). In this process one culprit made his escape good. The police party on their personal search secured from Shaikh Hassan alias Shaira one rifle of .12 bore and 12 empties, from Muhammad Jamil one pistol of .30 bore loaded and from Muhammad Akbar a .12 bore carbine loaded, from Muhammad Ghaffar (applicant) a .30 bore pistol loaded and 3 bullets, from Raj Muhammad (applicant) one revolver of .32 bore loaded, 3 alive bullets and 2 empties were recovered, from the pocket of Shabeer Hussain two bullets were recovered and from Muhammad Akbar two bullets were also recovered. On enquiry by the police the culprits/accused persons could not produce any valid licence. After arrest, registration of the case and completing usual investigation the accused were challaned in the Court.
3. Bail application on their behalf was moved before the learned IIIrd Additional Sessions Judge, Central, Karachi but the same was rejected by order, dated 8-5-1995, hence this application.
4. I have heard Mr. Z.A. Mubashar and Mr. M. Shafi Khan for applicants. Both have contended; (i) that the accused/applicants are innocent and have not committed any offence and a false case has been foisted upon them in order to please their higher authorities; (ii) that it is alleged that there was exchange of firing between the police and the accused persons but nobody is claimed to be injured; (iii) that no any empty cartridges have been recovered by the police; (iv) that the case of the accused/applicants requires further enquiry; and (v) that the applicants are in jail custody and are not required for any further investigation.
5. During the course of the arguments Mr. Muhammad Shafi Khan, learned counsel for the applicant Raj Muhammad son of Taj Muhammad placed on record a Photostat copy of Admit Card, issued by the Board of Secondary Education, Karachi, showing therein the age of the applicant as 9-7-1979 and stated that as the accused/applicant is of tender age, this ground may also be considered.
6. Mr. Azizur Rehman, Advocate for A.-G. For the State has contended that the ground of tender age was not agitated by the applicant in the lower Court, therefore, this plea cannot be raised in the bail application at this stage now. The objection raised by Mr. Azizur Rehman was very genuine.
Therefore, by consent of both the learned counsel, however, in the interest of justice, it was ordered that the accused/applicant Raj Muhammad son of Taj Muhammad may be produced before the police surgeon so that his age can be ascertained after carrying on bone X-Ray and other examinations. In compliance to the Court's orders the applicant was produced before the Police Surgeon, who after conducting usual investigation, and X-Ray examination, issued certificate which reads as under:-- "As per clinical and radiological findings the age is between eighteen (18) and nineteen (19) years"
7. Mr. Z.A. Mubashar has referred the following case-law:--
(i) Criminal Bail Application No,532 of 1995.
' In this bail application F.I.R. Was lodged at Police Station Shah Faisal on 1-1-1995 by Inspector Nawaz Khan Niazi who reported that he along with other police officials were busy in patrolling when they received spy information that some criminals armed with weapons intended to commit dacoit and that they were roaming in a car. The police thereafter managed to stop the car on Rashid Minhas, opposite the Cantonment House at about mid-night time and they found 5 persons inside the car, the applicant was one of them.. The applicant was arrested and one pistol along with 4 live rounds was recovered from his possession, which was unlicensed. The remaining 4 accused were also found in possession of unlicensed weapons. The car was found to be case property in a case of robbery which was committed in the year 1994. Therefore, 2 cases were registered against the applicant and 4 companions of the applicant. One was for the present offence under sections 399 and 402, P.P.C. And the other under section 412/34, P.P.C. In addition to that accused was also booked for an offence under section 13-D, Arms Ordinance.
' This authority is quite different and distinguishable from the facts of the present case. Here in this case the accused/applicants were apprehended at odd hours of night and from their possession unlicensed arms were recovered. From the possession of Raj Muhammad one revolver of .32 bore alongwith 3 live bullets and 2 empty were recovered from the chamber of his revolver. There is allegation against the accused/applicants that they had fired at the police party. They were arrested from bungalow in odd hours of night. Therefore, the police after usual investigation had challaned the accused/applicants for an offence not only under sections 399, 402, P.P.C. And 13-D, Arms Ordinance but the accused/applicants are also challaned by the police to face trial under section 324, P.P.C. As amended and section 457 of P.P.C.
(ii) Muhammad Ramzan Khan, v. The State (1989 PCr.LJ 2314): The learned Judge of the High Court has observed as under:-- "I have heard learned counsel and perused the file. The case was registered in December, 1987 but till today not a single witness has been recorded by the trial Court: No role as such is ascribed to the petitioner to indicate that he was going to commit the dacoit."
' Whereas in the present case the accused/applicants were apprehended in the odd hours of night with deadly weapons and from one accused pistol and two empties were recovered, which prima facie, shows that they had fired at the police party. Therefore, this authority is not favorable to the case of the accused/applicants.
(iii) Case of Muhammad Ayub Memon v. The State 1990 PCr.LJ 41. The facts of this case are that:-- "On 9-7-1989, S.H.O. Naseeruddin of Police Station Joharabad was patrolling along with his subordinate staff when he received an information from some unknown lady that some persons were sitting in a graveyard under suspicious circumstances. The police party raided the place and apprehended applicants Muhammad Ayub Memon and Qasim Soomro along with Tariq and Mairaj. Three persons out of these culprits namely Saeed Rasool, Arshad and Qadir were, however, successful in escaping. The S.H.O. Recovered one klashnikov with bullets from the possession of applicant Qasim Soomro. One shot-gun of .12 bore with live cartridges was recovered from the possession of applicant Muhammad Ayub Memon. A case under section 399, P.P.C. Was accordingly registered against all the culprits and after usual investigation they were sent up to stand their trial."
' The learned Judge has considered the observations made in Noga Lin and others v. Emperor, reported in AIR 1935 Rang. 294 which are as under:- "Against the other three appellants who have been convicted under section 399, Penal Code, the only evidence is that they were warming themselves round a fire in the open paddy fields, that some of them got up and ran when the headman's party approached, and that two of them were carrying fire-arms and cartridges hidden in Shan bags. How these facts can amount to proof of preparation for committing dacoit passes my comprehension. No relevant circumstances have been proved from which it can be inferred that these persons had an intention to commit dacoit. It is a common thing for villagers to sit round a fire and warm themselves on a cold night, and that is no offence."
' The authority of the learned Judge in any case is quite different and distinguishable from the facts of the present case. In this case as already pointed out the accused were not arrested from a graveyard or from paddy field but they were arrested in odd hours of night from a bungalow along with weapons and empties were lying in the chamber of revolver of applicant Raj Muhammad.
Therefore, this authority, in my humble view, is not favorable to the case of the applicants.
(iv) Case of Khawar and others v. The State PLD 1995 Kar. 105: In this case a Division Bench of this Court in appeal has observed as under:-- "Whole police proceedings appeared to have been prepared at the police station---No evidence was available on record to suggest that the accused either had assembled for the purpose of committing dacoit or were making any preparation for committing dacoity---Statements claimed to have been recorded by the police at the spot at the time of apprehension of accused under S.154, Cr.P.C. Appeared to be doubtful---Statements of the accused under 5.342, Cr.P.C. Had not been recorded by Trial Court---Accused were acquitted in circumstances."
' These observations of the learned D.B. Were in an appeal after conviction where evidence recorded by the trial Court was analysed and discussed and thereafter the learned D.B. Came to the above conclusion. Whereas in this case the accused/applicants after usual investigation have been sent up by the police to face their trial in the Court for the offences punishable under sections 457, 399, 402, P.P.C. Read with section 324, P.P.C. As amended and 13-D of the Arms Ordinance. The case is still waiting for recording of evidence by the learned trial Court. Therefore, no any opinion whatsoever can be expressed, which may prejudice the case of either party. Therefore, in my humble view this authority is not favorable to the case of the accused/applicants .
(iv) Case of Muhammad Ashraf and 4 others v. The State 1986 PCr.LJ 2786: In this case the learned Judge of the Lahore High Court has observed as under:-- "It is contended that this case is to counter-weigh the earlier case got registered by the petitioners pertaining to the murder of Muhammad Ijaz and further that nobody had received any hurt and further that three of the companions of the petitioners have been found innocent by the police.
Muhammad Ijaz deceased is said to be the real brother of Mumtaz Khan petitioner."
' The facts of the case cited above by the learned counsel are quite different and distinguishable from the facts of the case in hand. Here in this case there is no any allegation that any counter- case has been filed by the accused persons against the police. Whereas in the cited case keeping in view the fact that counter-case had been filed, the bail was allowed. Therefore, this authority, in my humble view, is not favourable to the case of the applicants.
(vi) Case of Ashiq Hussain v. Superintendent, District Jail, Lahore 1992 PCr.LJ 1721: A learned Judge of the Lahore High Court had granted bail with the following observations:-- "During arguments the parties brought to the notice of the Court that complainant is a tenant under the father of the accused in respect of a shop situated in Landa Bazar. Learned counsel maintains that Zail-eAbbas has been implicated in the case falsely, with some ulterior motive. In the circumstances of the case, Zail-e-Abbas is admitted to bail in the sum of Rs,50,000."
' In the case in hand there is no any allegation of tenancy with the father of the accused whom the police had arrested during investigations.
8. Mr. M. Shafi Khan, learned counsel for the applicant has referred me to the following authorities:- -
(i) Case of Muhammad Anwar v. The State 1983 SCM R 1001: The Honorable Supreme Court has held as under:-- "The learned Assistant Advocate-General could not raise any objection against. The genuineness of the school leaving certificate or the entries therein. We are of the opinion that the view expressed by the police was not sufficient to reject the appellants' plea of tender age in view of the entries in the certified copy of the school leaving certificate."
' This authority of the Honorable Supreme Court is also quite different and distinguishable from the case of the applicant Raj Muhammad.
' At the time of arguments Mr. Azizur Rehman, learned counsel for the State opposed the raising of the plea of tender age of the accused/applicant Raj Muhammad because the ground of tender age was not agitated by the applicant before the trial Court. However, by consent of both the learned counsel, as mentioned earlier, the applicant was referred to the Police Surgeon for ascertaining his age and the Police Surgeon has opined that the age of the applicant is between 18/19 years.
' In the above-referred authority of the Honourable Supreme Court petitioner Muhammad Anwar was not referred to Radiologist for ascertaining his age. Mere mentioning of police that it appears that the petitioner Muhammad Anwar was 19 years of age was not considered by the Honorable Supreme Court. Whereas in this case, there is an opinion of the Police Surgeon as mentioned above. Therefore, this authority is not helpful to the applicant.
(ii) Case of Muhammad Anwar and others v. The State 1976 PCr.LJ 1325: In this case F.I.R. Was registered at the instance of Muhammad Yasin son of Abdur Rehman on 20-2-1973 with Police Station Dahranwala under section 363/366, P.P.C. Muhammad Yasin the complainant stated that:- "Four years prior to the occurrence his father died, leaving Mst. Sakina who was born on 8-2-1959 and was of the age of 14 years and 12 days on the day of occurrence. The complainant betrothed his sister to his cousin Muhammad Rafiq son of Muhammad Hassan. He had another uncle who was Lambardar of Chak No,202/M and was unhappy over this alliance. The said Muhammad Ishaque was very keen to marry Mst. Sakina with his son Mustafa but as the complainant did not agree to this proposal he became annoyed and declared that he will forcibly marry Mst. Sakina with his son. In the month of December, 1972, he went to his native village Hassan Khanwala in District Lahore. On 19th December, 1972 he came back to his house and found that his sister Mst.
Sakina was absent. He was told by his wife Mast. Hajran that eight .Days prior to his arrival, Mst.
Sakina was forcibly abducted at about evening time when she was going to the fields to attend the call of nature."
' This case-law, in any case, is not helpful to the present applicant as the facts of this case are quite different and distinguishable from the facts of the present case.
(iii) Case of Barmy Khan and another v. The State PLD 1966 (W.P.) Kar. 71: The learned Judge of this Court has held as under:- "The age of the girl had been determined by Dr. Miss Surraya Hamiduddin by physical examination of the body of the girl and her teeth. Mst. Nur Begum had not been sent to any Radiologist nor were any X-ray photographs taken of her for the purpose of determining her age. The evidence of Dr. Miss Surraya Hamiduddin in these circumstances on the question of age will not be conclusive specially when she has stated that in the type of examination she had held there is likelihood of an error of about two to three years."
' This case is also quite different and distinguishable. In the case in hand age of the applicant Raj Muhammad has been determined after getting report from Radiologist. Whereas in the case referred to above Mst. Nur Begum was not sent to any Radiologist nor any X-Ray photograph was taken of her for the purpose of determining her age. Therefore, this authority is not helpful to the case of the applicant.
9. I would like to reproduce section 457, P.P.C. Which is as under:-- "457. Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment.--- Whoever commits lurking house-trespass by night, or house-breaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years."
10. I would also like to reproduce section 324 of the P.P.C. As amended which is as under:-- "324. Attempt to commit Qatl-i-Amd.--- Whoever does any act with such intention or knowledge, and under such circumstances, that, if he by that act caused Qatl, he would be guilty of Qatl-i- Amd, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and, if hurt is caused to any person by such act, the offender shall be liable to the punishment provided for the hurt: ' Provided that, where the punishment for the hurt is Qisas which is not executable, the offender shall be liable to Arsh and may also be punished with imprisonment of either description for a term which may extend to seven years."
11. I have gone through the police papers, and have also perused and discussed the authorities referred by the learned counsel. Prima facie the accused/applicants have been arrested by the police party during odd hours of night from a bungalow, fire-arms along with empties are alleged to have been recovered from their possession, from which they have fired at the police party. Prima facie provisions of sections 457, P.P.C. And 324, P.P.C. As amended are attracted as such there appears reasonable grounds for believing that they have been guilty of an offence punishable with imprisonment for 10 years. As such this application is rejected.