1. ' MUHAMMAD ROSHAN ESSANI, J.--- The facts leading to the present application for bail are that the applicant is facing trial in Special Case No,74 of 1999 before the learned Special Judge for Suppression of Terrorist Activities, Karachi (East) under sections 353 and 324, P.P.C. Which arose out of F.I.R. No,86 of 1999 of Police Station Zaman Town, Korangi, District East Karachi.
2. ' The brief facts of the prosecution case as disclosed in the F.I.R. Lodged by complainant Inspector Raja Umer Khatab of Police Station A.T.W. Sindh, Karachi on 7-7-1999 are reproduced hereinbelow:- - "Today, I, S.H.O. Inspector, Raja Umer Khatab posted at Police Station A.T.W. Sindh, Karachi alongwith subordinate staff proceeded in official mobile in connection with investigation of Crime No,200 of 1998 under .Sections 353/34 and 13-E of Arms Ordinance, of Police Station Kalakot. We. Were busy in search of accused and car lifters. After receiving spy information, we reached at Korangi Crossing, near Jamia Masjid, Bhittai Colony and started checking. At about 19-50 hours, we noticed a jeep coming from Ibrahim Hyderi side. A.S.-I. Muhammad Ishtiaq and A.S.-I. Abdul Sattar raised a signal to stop. Whereupon the driver of the jeep stopped the jeep. As soon as A.S.-I. Muhammad Ishtiaq and A.S.-I. Abdul Sattar went nearer to check the documents, the driver immediately took turn and accelerated the speed. He went towards Darul Uloom, Karachi from Ibrahim Hyderi side. While going, the accused in order to deter us from discharging the official duty and in order to kip the police personnel, started fire, which hit A.S.-I. Muhammad Ishtiaq on his hand and the police official in return started firing. The number plate applied on rear side of the Land Cruiser Jeep was BC-9171, it was followed by the police but the accused took advantage of crowd and decamped.
3. ' We can identify the jeep and the accused on seeing them. Two empty cartridges of .12 bore, 1 live, two empties of .30 bore T.T. Pistol and 5 empty cartridges of kalashnikov were taken in custody by the police from the scene of offence. The names and residence of five accused are not known. The offence punishable under section 353/324, P.P.C. Is made out and I am busy in investigating the case. The F.I.R. Is registered."
4. ' The applicant/accused applied for bail in the trial Court but it was declined by impugned order, dated 24-9-1999.
5. ' We have heard Mr. Shoukat Zubedi, learned counsel for the applicant/accused and Mr. Syed Jalil A. Hashmi learned Assistant Advocate-General, Sindh on behalf of the State. The latter opposed the bail plea of the applicant/accused. We have also perused the impugned order and material placed on the record, so also the police record with the assistance of learned counsel for the parties.
6. The perusal of record shows that names of accused do not transpire in the F.I.R. And no description with regard to imminent features of the assailants were given therein as well as in statements under section 161, Cr.P.C. The applicant/accused was arrested on 10-8-1999 and his remand in police custody was obtained by the police on the next day of his arrest, from the concerned Judicial Magistrate. The identification through P.Ws. A.S.-I. Hamid Ali Gondal, A.S.-I. Abdul Sattar Abro and P.C. Yasir Mehmood of same police station and two other persons were held on 12-8-1999 and on 18-8-1999 identification through H.C. Nisar Khan and Muhammad Malan of same police station was held but no explanation in charge-sheet for holding delayed identification has been given. The applicant/accused was in police custody on both occasions before his identification parade. After usual investigation the applicant/accused was sent up on 24-8-1999 under Charge Sheet No,106 of 1999 to stand trial.
7. ' The case of the prosecution is that firing was made from inside of the running vehicle but empties of different fire-arms were found on the scene of offence, puts one on guard to the veracity/truthfulness of this piece of evidence because in case of firing from inside the empties would fall inside the vehicle and not outside it.
8. ' It is also case of the prosecution that there was an encounter in which firing from both sides was made. The vehicle used in the commission of offence was recovered on 9-7-1999 from Eastern Motors Co. But not a single scratch was found on the vehicle of either parties.
9. ' So far injury on the palmer aspect, skin deep, on the hand of P.W. A.S.-I. Muhammad Ishtiaque is concerned. The perusal of police record shows that no Mashirnama of injury was prepared. In initial medical certificate bearing No,J-3708, dated 7-7-1999 it is not shown whether the injury was result of a bullet or pellet, it is mentioned therein mat no blackening or charring was found in the wound.
10. This suggests that even if it was a fire-arm injury, the fire was not made from close quarters. He was treated as outdoor patient. With regard to nature of injury it was mentioned in the medico- legal certificate that injury was Ghyar Jaffa Damiaha (simple injury). The Domiha is defined under section 337(F)(i), P.P.C. It is non-cognizable. Bailable and punishable for one year and Daman (fine).
11. ' It will be pertinent to mention that Asghar Ali brother of the applicant made an application to the Secretary, Health Government of Sindh complaining therein that a false medical certificate with regard to injury on the person of A.S.-I. Muhammad Ishtiaque was issued by the Medico-Legal Officer, therefore, Medical Board may be constituted to ascertain the true fact about the injury. His request was acceded and Special Medical Board was constituted accordingly. The meeting of the Board was convened for five times but injured A.S.-I. Muhammad Ishtiaque did not appear before the Board.
12. ' Consequently, the initial certificate issued by Medical Officer was declared by the Medical Board as null and void. The Letter No,SOV1(H)6-63/99, dated 28-5-1999 is reproduced hereinunder in extenso, which is self-explanatory-- "No, SOVI(H)6-63/99 Government of Sindh, Health Department Karachi, dated the 28th August, 1999.
13. ' To ' Mr. Asghar Ali son of Abdul Sattar, Bhitai Colony, Korangi Kirk, Malir, Karachi.
14. ' Sub: Special Medical Board in respect of A.S.-I. Ishtiaque.
15. ' I am directed to refer to your application, dated 20-7-1999 on the subject noted above, and to state that Special Medical Board was constituted and the meetings of the Special Medical Board has been fixed for five (5) times but the injured A.S.-I. Ishtiaque did not appear before Special Medical Board. The opinion of that the medico-legal certificate No,J-3708, dated 7-7-1999 issued by Dr. Qarar Abbasi, Medical Officer, J.P.M.C., Karachi should be treated as null and void.
16. (Sd.) Dr. A. Khalique Sheikh, Section Officer VI(H) ' for Secretary to Government of Sindh, Karachi, dated the 28th August, 1999.
17. ' No, SOVI(H)6-63/99 ' A copy is forwarded for information and necessary action to:
(1) The Additional Police Surgeon, J.P.M.C., Karachi.
(2) The Medical Superintendent, Services Hospital and Civil Surgeon, Services Hospital, Karachi.
18. Section Officer VI(H)."
19. ' During the pendency of present application on 12-10-1999, the following order was passed by this Court:-- "Order ' 12-10-1999 Mr. Khawaja Sharful Islam for the Applicant.
20. ' Mr. Syed Jalil A. Hashmi, Assistant Advocate-General for the State alongwith S.-I. Muhammad Nawaz of A.T.W./10.
21. ' It is contended by the learned counsel for the applicant that he had challenged the medical certificate of injured A.S.-I, Ishtiaque before the Medical Board which was constituted on the orders of Secretary Health, Government of Sindh. According to him the Special Medical Board arranged its meetings for five times, but the injured A.S.-I. Did not appear, as such the Board declared that the medical certificate issued by Dr. Karar Abbasi, Medico-Legal Officer. J.P.M.C., Karachi should be treated as null and void.
22. ' S.-I. Muhammad Nawaz present in Court submits that the said A.S.-I. Had proceeded on leave and had prepared an application Which was placed before the Secretary Health, Department, Government of Sindh but was not considered. He undertakes to produce said injured A.S.-I. Before the same Special Medical Board on 16-10-1999, which will be reconstituted and after examining the injured his medical report be forwarded to Superintendent, Criminal Branch of this Court immediately. With the consent of the learned A.S.G. Hearing of this bail application is adjourned to 21-10-1999.
23. (Sd.) Judge (Sd.) Judge.
24. ' Again on 28-10-1999 the order reproduced hereinbelow was passed:-- "Order ' 28-10-1999 ' Mr. Khawaja Sharful Islam and Shaukat H. Zubedi for the Applicant.
25. ' Mr. Arshad Lodhi, A.A.-G. For the State.
26. ' S.-I. Malik Muhammad Nawaz, Investigation Officer, has submitted an intimation in writing enclosing therewith a certificate issued by the Medical Superintendent, Services Hospital, Karachi, which reveals that injured A.S.-I. Muhammad Ishtiaque of A.T.W. Police Station was produced before the Medical Superintendent, Services Hospital and Civil Surgeon, Karachi through A.S.-I. Fida Hussain on 21-10-1999. However, due to non-availability of one of the Members of the Medical Board, the said injured could not be examined on 21-10-1999 and the examination was postponed for today's date, viz. 28-10-1999. Anyhow the matter is adjourned to 3-11-1999.
27. ' S.-I. Malik Muhammad Nawaz, Investigation Officer present in Court today, undertakes to produce injured A.S.-I. Muhammad Ishtiaque of A.T.W. Police Station before the Medical. Board for examination.
28. (Sd.) Judge (Sd.) Judge."
29. ' On 3-11-1999 the following order was passed: "Order ' 3-11-1999.
30. ' Messrs Shoukat Hussain Zubedi and Khawaja Sharful Islam, Advocates.
31. Mr. S. Jalil A. Hashmi, A.A.-G.
32. ' Learned A.A.-G. Has placed on record report of Malik Muhammad Nawaz, Investigating Officer/S.-I.
33. A.T.W. Police Station, Karachi which is brought on record. The report shows that on 21-10-1999 injured S.-I. Was produced before the Special Medical Board but was not examined and direction was given to produce him on 28-10-1999. On 28-10-1999 the injured was once again produced before the Special Medical Board but he was not examined and direction was given for his production on 11-11-1999 and such entries were made by the Investigating Officer in the station diary of the police station. The operative part of the report reveals as under:-- 'It is submitted that the Special Medical Board which consists of Dr. Ishtiaq, Dr. Tariq, Dr. Sikandar, Dr. Nadir and Medical Superintendent, Services Hospital and Civil Surgeon, Karachi is adopting delaying tactics and is not cooperating. Earlier the Medical Superintendent, Services Hospital and Civil Surgeon, despite of submission of a report had declared the medical of injured null and void and copy of which was not sent to A.T.W. Police Station which affected the case adversely and the case came from A.T.C. To S.T.A. It is not known as to why Special Medical Board of injured A.S.-I. Is not being arranged. Further orders are solicited.'
34. ' It appears that the Board Authorities for reasons best known to them are avoiding to examine the injured. In view of this, Secretary, Health Department, Government of Sindh is directed to constitute another Special Medical Board and also take appropriate action in the matter. Adjourned to 16-11- 1999.
35. (Sd.) Judge (Sd.) Judge."
36. ' The Medical Superintendent, Services Hospital and Civil Surgeon, Karachi sent a letter, dated 15-11- 1999 to the Superintendent Criminal of this Court. The contents whereof are reproduced hereinunder in extenso for ready reference:-- "Phone No,9215753 Office of the Medical Superintendent, Services Hospital and Civil Surgeon, Karachi. Dated the 15th November, 1999.
37. ' To ' The Superintendent, Criminal, High Court of Sindh, Karachi.
38. ' Sub: Criminal Bail Application No,1041 of 1999 filed by Mr. Zafar Ali son of Abdul Sattar v. The State.
39. ' Sir, ' With reference to Letter No,SOVI(H)3-7-99, dated 10-11-1999, from Secretary to Government of Sindh, Health Department, Karachi, received in the office of the undersigned on 11-11-1999, it is stated that the meetings of Special Medical Boards were held on 21-10-1999, 28-10-1999 and 11-11- 1999, in which injured A.S.-I. Ishtiaque was present in all above three meetings of the Boards whereas Dr. Qarar Ahmed Abbasi, Ex-M.L.O. J.P.M.C., Karachi was absent on all of three dates cited above and he failed to produce relevant documentary records pertaining to injured A.S.-I.
40. Ishtiaque. Therefore, in the absence of concerned M.L.O. And relevant records the Board members were not in a position to give findings about the correctness or otherwise of the M.L.C. Bearing No,J- 3708/99, dated 7-7-1999.
41. ' However, we wrote letter to Secretary to Government of Sindh, Health Department, Karachi on 16- 10-1999 (Copy attached herewith), stating therein that Dr. Qarar Ahmed Abbasi, Ex-M.L.O.
42. ' J.P.M.C., Karachi, may please be directed to appear before the Special Medical Board alongwith original record of M.L.C. Since the Police Surgeon, Karachi has informed that since M.L.O. Has been transferred from this office and his whereabout may kindly be asked from Secretary to Government of Sindh Health Department, Karachi (copy attached).
43. (Sd.) Medical Superintendent, Services Hospital and Civil Surgeon, Karachi.
44. ' A copy forwarded to the Secretary to Government of Sindh, Health Department, Karachi with reference to his letter No, quoted above.
45. (Sd.) Medical Superintendent, Services Hospital and Civil Surgeon, Karachi."
46. ' Lastly on 26-11-1999 when this matter came up for hearing, the learned Assistant Advocate- General filed the following statement. The contents of the same are reproduced hereinunder in toto for the sake of convenience:-- "It is respectfully submitted on behalf of the State as under:-
(1) That the Investigation Officer produced the injured before the Medical Board for medical examination on 11-11-1999, however. The injured was not examined by the Board. It was, however.
47. Informed to the Investigating Officer that the Board may call the injured on an early date.
(2) That the Investigating Officer received no intimation from the Board till 16-11-1999. Thus, the Investigating Officer wrote a letter through S.P. Which was received to the Board on 18-11-1999, however, till this date neither the injured was called nor his medical examination is conducted. J3)
48. It is evident that the Board is avoiding to conduct the medical examination of the injured. In this regard fresh direction of this Honourable Court is prayed in the interest of justice. Karachi (Sd.)
49. Syed Jalil Ahmed Hashmi, Dated 26-11-1999 Assistant Advocate-General, Sindh."
50. ' Thus, the perusal of above orders and the letters and statements etc. Shows that Investigating Agency left no stone unturned by dragging the matter, so that genuineness of the injury could not be ascertained.
51. ' The other material placed on record and not disputed by the prosecution shows that applicant and his brother Agha Asghar Ali are transporters. According to the applicant the then S.H O Sohail Faiz and Ahmed Khan Paryal demanded illegal gratification (Bhata) from them to which they refused to pay, whereupon the police officials annoyed very much and started implicating them in false cases. The applicant/accused and his brother filed complaints before the Court of Special Judge Anti-Corruption at Karachi against them which are sub judice. The elder brother of applicant/accused also filed C.P. No,107 of 1997 before this Court regarding harassment by police and taking away of case forcibly. As per the orders of this Court Nazir of the Court conducted raid and submitted report that car was found.In possession of S.H.O. Sohail Faiz and it was released to him.
52. ' The then S.H.O. Ahmed Khan Paryal also started harassing the applicant/accused and his family members, therefore, C.P. No,207 of 1999 was filed in this Court and S.H.O.Was directed to act according to law.
53. ' It is stated at the instance of abovesaid S.H.Os. The present case was planted against them by their colleague and friend i,e, complainant Inspector Raja Umer Khatab. The land cruiser vehicle bearing registration No,BC9171 was seized by the police, therefore, Asghar Ali brother of the applicant/accused filed C.P. No,354 of 1999 before this Court. The land cruiser was released under the direction of this Court upon furnishing surety.
54. ' In the case of Manzoor and others v. The State reported in PLD 1972 SC 81 it was observed as under:-- "It is obviously not correct to depend on the ipse dixit of the police regarding the guilt or innocence of an accused person even in the matter of deciding the question of his bail. As repeatedly held by this Court, bail in non-bailable case is a matter within the discretion of the Courts, which has to be exercised with due Care and caution on the facts and circumstances of each case. For an offence punishable with death or transportation for life, an accused charged with the same is not to be released on bail if there are reasonable grounds for believing that he has committed such an offence. The onus is on the prosecution to disclose those reasonable grounds, and the Court has to examine the data available in the case to find out whether such reasonable grounds exist, to connect the accused person with the crime alleged against him. The Court's belief on the point has to .Rest on the accusations made in the report to the police, the nature and the credentials of the evidence, which the prosecution proposes to lead in the case, and all the other relevant circumstances surrounding the occurrence. It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their: complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquitted in the long run."
55. The upshot of the above discussion is that, looking towards the peculiar facts and circumstances of the case particularly the identification of 5 culprits. Sitting in a vehicle running in fast speed, nature of the injury and conduct of injured and previous enmity with police personnel coupled with the fact that the name of accused does not appear in F.I.R. The prosecution story put forth by police does not ring true. Admittedly there was crossfiri but none of the vehicle was damaged.
56. ' The fact is hardly believable that long vehicle like land cruiser could escape from police in a busy area of Karachi. The descriptions and features do not figure in F.I.R. Identification parade is delayed.
57. The accused is businessm an. Previous enmity is admitted on record. The injured is avoiding his appearance before Medical Board. The alleged injury is not on vital part and is simple in nature, therefore, we are of the considered view that prima facie there are reasonable grounds to believe that applicant/accused is not guilty of the offence and case necessitates further enquiry as contemplated under section 497(2), Cr.P.C. Reliance is placed on the case of Meeran Bux v. The State and another reported in PLD 1989 SC 347.
58. ' Consequently, applicant/accused is granted bail in the sum of Rs,2 lac (Rupees two lac only) and P.R. Bond in the like amount to the satisfaction of the trial Court.
59. ' The observations made hereinabove are of tentative nature and the trial Court will not be influenced thereby in any way at the time of final decision of the case and it will be free to conclude and arrive at its own independent findings after evidence is recorded in the case.