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19/08/2015 08:12

Case Judgement

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http://pakistanlawsite.com/LawOnline/law/content21.asp?Casedes=199...

1997 S C M R 876
[Supreme Court of Pakistan]
Present: Saleem Akhtar and Nasir Aslam Zahid, JJ
NUSRAT ALI Appellant
versus
THE STATERespondent
Criminal Petitions for Leave to Appeals Nos. 189K and 190K of 1996, decided on 26th November, 1996.
(On appeal from the orders of High Court of Sindh, Karachi, dated 1581996/2681996 passed in Criminal
Bail Application No. 777 of 1996 and Criminal Bail Application No. 778 of 1996).
Criminal Procedure Code (V of 1898)
Ss. 497 & 103Penal Code (XLV of 1860), 5.324West Pakistan Arms Ordinance (XX of 1965),
S.13Constitution of Pakistan (1973), Art.185(3)BailAccused prima facie seemed to have been
detained before he was alleged to have been arrested when the recoveries were madeDespite the recoveries
having been effected from a busy place surrounded by houses and buildings no independent witness was
associated with the recovery proceedings nor any record was produced to show that respectable residents of
the locality were not willing to join the recovery proceedings in spite of the efforts made by police in this
behalfLeave to appeal was granted to accused in circumstances in both the petitions and in the meantime
he was admitted to bail in each case till the disposal of appeals.
Sardar Muhammad Ishaque, Advocate/AdvocateonRecord _ for Petitioner.
Muhammad Bachal Tonyo, Additional AdvocateGeneral, Sindh for the State.
Date of hearing: 26th November, 1996.
ORDER
SALEEM AKHTAR, J.These two petitions will be disposed of by this order as they arise from the same
incident.
The petitioner seeks leave to appeal against the orders of the High Court of Sindh whereby his Bail
Applications were dismissed in both the cases. According to the F.I.R., registered on 2921996 at 1945
hours, it was alleged that the S.H.O., Police Station New Karachi while patrolling in the area with his
subordinate staff, when he reached Kala School, Sector 5/D, New Karachi, one Captain Arif of 43 Wing
Shahbaz Rangers also reached there with his subordinate staff. In the meantime spy information was received
that 8/9 armed persons were sitting in Eidgah Ground, Sector 5/D, with intention to commit heinous crime.
The S.H.O., on receiving the information alongwith Captain Arif, Inspector Attaullah of 43 Wing Rangers

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Case Judgement

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http://pakistanlawsite.com/LawOnline/law/content21.asp?Casedes=199...

and other staff members reached the place at 1845 hours when some terrorists started firing upon Rangers
and police party with intention to kill them. Thereafter, police and rangers also fired upon the accused in
selfdefence and police and rangers surrounded the accused persons and arrested them who disclosed their
names as Ashraf Ali son of Hashmat Ali from whose possession one klashnikov with loaded magazine 18
rounds, one grenade, one mehroon colour wallet containing Rs.2,650, three railway reservation tickets from
Karachi to Faisalabad were recovered, Nusrat Ali son of Hashmat Ali present petitioner (from whose
possession one klashnikov was recovered) and Naushad Ali son of Hashmat Ali from whose possession one
klashnikov with loaded magazine and a grenade were recovered. 73 rounds lying in a cloth bag were also
recovered by the police which according to Ashraf Ali accused belonged to Qamar Ahmad. Ashraf Ali also
mentioned that Farasat Ali, Muzaffar Iqbal and Aslam ran away from there.
Learned counsel for the petitioner has pointed out that in the morning of 29th February, 1996, the mother of
the petitioner had filed a Constitution petition in the High Court alleging that all the three sons, including the
petitioner, were arrested on 28th February, 1996 at 100 p.m. from A8 Rehman Villas, University Road,
Karachi, who had been tortured and she was not allowed to provide food and clothes from the home. Notice
was issued and the respondent laid information in Court that they have been booked under a substantive
offence under F.I.R., registered on 2921996. Learned counsel for the petitioner pointed out that as the
petitioner is an Advocate, the President of the Karachi Bar Association and the Honourary SecretaryGeneral
inquired from the Rangers Headquarters, Korangi about the petitioner who informed that he is in their
custody. This information was received at 1100 a.m. on 2921996. An affidavit to this effect had been filed
by Muhammad Iqbal Road, Honourary SecretaryGeneral of Karachi Bar Association.
Learned counsel further pointed out that this is a case of ineffective firing foisted upon falsely by the Police.
On merits it was contended that although allegedly there had been firing from both sides, no empties were
recovered and no independent witness has been associated with the recoveries.
Learned Additional AdvocateGeneral contended that petitioner's name has been mentioned in the F.I.R., and
recoveries were made in the presence of Mashirs and, therefore, he is not entitled to bail.
From these facts and contentions it prima facie seems that the petitioner had been detained before he is
alleged to have been arrested when the recoveries were made. Furthermore, the recoveries, though made in an
open place, which according to the learned counsel for the petitioner is surrounded by houses and buildings
and is a busy place, no independent witness was associated, nor any record has been produced to show that
the respectable residents of the locality were not willing to associate and the efforts made by the Police did
not succeed to this effect.
Considering all these facts, we grant leave to appeal in both the petitions and in the meantime, till the
disposal of appeals, the petitioner is granted bail in each case in the sum of Rs.1,00,000 with one surety each
in the like amount, to the satisfaction of trial Court.
N.H.Q./N484/S

Leave granted,

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