COMMON GROUNDS FOR BAIL
APPLICATION
1.
That,
applicant/accused is innocent and has falsely implicated in this case by police
due to enmity.
2.
That,
applicant / accused is ready to furnish surety for the satisfaction of the
court.
3.
That,
applicant / accused is neither previous convicted nor hardened criminal.
4.
That
out of three culprits, none of them is specifically named, as assailant.
5.
That,
the accused is no more required for investigation or recovery; the final
challan has been submitted.
6.
That,
the case of applicant/accused falls under proviso 3-A of S/497(1) Cr.P.C.
7.
That,
the applicant / accused has granted bail in main case.
8.
That,
nothing has been recovered from the possession or on pointation of applicant /
accused and the alleged recovery has been foisted upon him.
9.
That,
the complainant and I.O is the same person, and no name of witness has been
cited in F.I.R, which is sheer violence of S/103 Cr.P.C.
10.
That,
it is a case of no evidence against the applicant / accused except his own
alleged confession, which was extracted under pressure, threats, torture etc.
11.
That,
applicant is chronic diabetic patient. He has enlarged heart and hypertension
at the time of his arrest he was under treatment. He has been medically
examined twice during custody due to sever conditions. His remaining in custody
may be detrimental to his life.
12.
That,
mushers of recovery and arrest are policemen and no respectable & trust
worthy private person has been made a mashir.
13.
That,
the prosecution has not fixed the liability of any culprit about the injury
caused on the person.
14.
That,
the number of persons specified in F.I.R are 2 and the number of accused names
in final challan are 4 which proves that the case is concocted and innocent
person have been involved in the case.
15.
That,
the number of currency notes allegedly snatched from the complainant are not
given in F.I.R as such it cannot be said the amount allegedly recovered from
the accused is part of the amount snatched.
16.
That,
no accused was arrested on the spot and specifically the name of the present
accused was added in the F.I.R being the active member of Political party that
the mala fide intention and ulterior motive is apparent.
17.
That,
the alleged offence is not punishable with 10 years / life imprisonment or
death and the discretion for grant of bail can be exercised in favor of the
accused as held in 1969 SCMR P.233 and PLD 1995 S.C P.34.
18.
That,
section does not fall in prohibitory clause and discretion for grant of bail
can be exercised in favor of the accused as held in PLD 1995, S.C. P.34.
19.
That
from the contents of the F.I.R it is admitted position that the prosecution
case is based on the information of the informer but no statement of the
informer is recorded by police. That it is rhetoric and based on illegal
consensus on the part of the prosecution is not bound to record the statement
of the informer but the same is in negation of law laid down in A.I.R 1949 EP
P.340 that as per this law the statement of the complainant is hearsay which is
inadmissible under article 76 of Qanoon-e-Shahadat. That requires further inquiry
U/S 497 (2) Cr.P.C.
20.
That,
the full bench of the Supreme court has laid down law in 1992 SCMR P. 1983
where in it was held that the police can take the plea that they had fired in
self defense as it is the order of the day in police rank file they took every
incident as an encounter and keeping in view the law laid down by SC, the
present encounter is fake, concocted and is of no legal value.
21.
That,
no independent witness is cited in the whole case to support version of the
police where as admittedly the incident happened at 6:00 p.m in a thickly
populated area.
22.
That,
the present applicant/accused is living in the jurisdiction of this Honorable
Court throughout and there is no scope that he was absconder. The version of
applicant/accused has supported by affidavit of the father of the accused which
is attached herewith. Whereas the applicant/accused was declared absconder
under stereotype proceedings U/S 87/88. (2994 PCRLJ p. 1335, 1336).
23.
That,
the accused has been shown as absconder U/S 512 Cr.P.C in challan which on the
face of it is not applicable against the present accused and he cannot be
termed as absconder as held in PLD 1996 KAR p.490 and 1991 SCMR P.332.
24.
That,
the father of the accused is ready to sworn an affidavit that the accused was
throughout with him and never abscond and the whole allegation of absconsion is
based on sinister, fabricated and without substance.
25.
That,
there is no chance of his absconsion as he is residing at Karachi along with
his family members.
26.
That,
the prosecution case is based on disclosure of accused but as per law laid down
by supreme court that the mere disclosure made by the accused does not
warranted conviction as held in 1977 SCMR p.292.
27.
That
the name of the applicant does not transpire in the F.I.R and the name of the
eyewitness is also missing in the F.I.R.
28.
That,
the petitioner is implicated on the statement of a person who is chance witness.
29.
That
there is last seen evidence and no incriminating recoveries have been affected
from the accused.
30.
That
the name of accused does not appear in F.I.R and after his arrest no
identification parade was held, that it is settled law that if assailants are
not known to the complainant party prior to the incident or at the time of
incident the identification parade must as to held according to law PLJ 1995 CR
p.97 and 1997 SCMR p.971. That in absence of identification parade the matter requires
further inquiry U/S 497 Cr.P.C.
31.
That,
the only incarnating piece of evidence against the accused is that he is
arrested in case U/S ……… and during the police custody he has admitted his
guilt and pointed out the place of incident. That such admission on the part of
the accused is inadmissible and is of no legal value as held in 1996 PCRLJ
p.1603 and 1997 SCMR p.292.
32.
That,
the complainant is police officer and he took the dead body to hospital after
completing all the proceedings and at the belted stage named certain person
that the informer told him that they have participated in the commission of
offence and such piece of evidence is inadmissible as held in 1939 AIR p.340.
33.
That,
from the contents of the FIR it is admitted position that the prosecution had
miserably failed to prove possession and control over the case property as
mentioned in FIR. That infect both the rifle and SMG was abounded and same were
not under the supervision and custody of any body.
34.
That,
it is well settled law that if the case property is unattended and inaccessible
to one and all the same cannot be termed as the exclusive possession of
accused. That keeping in view the aforesaid dictum it is presumed that both the
accused are innocent and possibly of false implication cannot be ruled out.
35.
That,
from the contents of the FIR it is also admitted position that case property
was not sealed at the spot but all the documents were prepared at the place
which is best known to police.
36.
That
accused is in custody since 17/9/2000 till now and there is no progress in the
case although the challan has submitted and the investigation is completed.
37.
That
trial has not commenced so for and is likely to take long to conclude.
38.
There
is no independent witness in whole case.
39.
That
no specific role is assigned to accused. As there are plethora of rulings of
the superior courts where in it is held that in order to saddle an accused
should be positively connected with the alleged offence as held in SCMR p.332
and PLD 1996 Kar p.490.
40.
That
the accused has been implicated for causing injuries to the deceased as well as
to the injured but no specific role has been attributed to petitioner.
41.
That
no positive report of expert is available on record for time being connecting
recoveries / pistol recovered from the accused and articles/ empties recovered
from the spot.
42.
That
no distinguishing features of the persons involved in the crime have been given
in FIR. More over the incident as narrated by the complainant seems to have
occurred so suddenly that it is humanly impossible to correctly retain in mind
the features of the culprits. Any identification of the culprit under
circumstances cannot be relied upon.
43.
That,
admittedly statements are not corroborated with each other coupled with the
factum at the time of incident it was not detected who is the real culprit.
44.
That
7/7 was Saturday when bank in Pakistan remain close monetary transaction at
12:00 noon. This fact falsifies the statement of the complainant that he drew
money from the state bank at 2:00 noon.
45.
Two
PWs have supported the defense version regarding the innocence of the accused
by submitting their respective affidavits, which are available on record. To
file affidavit (PLD 1997 SC 347).
46.
That
there is no direct evidence except the circumstances against the accused. It is
correct that strong circumstances against accused are there and he may be
involved in offence but circumstances how strong it may be can not substitute
the proof in a criminal case. (PCRLJ 2001 p.262).
47.
That
incident took place closer to village at daytime, but no body from the local
vicinity supported the prosecution. (PCRLJ 1972 p.567).
48.
That
the mashirs of arrest are Hench man of Police, not the resident of locality;
this is violation of S/103 Cr.P.C. (PCRLJ 2001 p.44 (2F)).
49.
That
involvement of accused in similar nature of offence is not sufficient to
deprive him of liberty. (1997 PLD 1808) (1997 PLD Kar 156).
50.
That
the present FIR is registered and raid conducted on spy information which is
not warranted in offence of Zina (EHO) read with law of Qazaf. As the spy
deserve his name to be kept secret but in the case of Zina one who makes
allegation has to prove the same as provided under injunction of Islam so for
in case of Zina the FIR on the information of spy is not called for and is
illegal.
51.
That
as per allegation leveled in FIR the application has not committed any of
offence but was preparing to commit an offence which itself is not a offence as
intention and preparation are two different things and it cannot be assumed
that they were preparing for commission of Zina.
52.
That
Petitioner/applicant appearing before trial court voluntary and lodged in jail
for last one month. He has surrendered himself so for lenient must be given to
him in consideration of bail PCRLJ 1983 P.2600.
53.
That
Police findings are as the accused is innocent. Accused rightly enlarged on
bail. 1969 PCRLJ 1111.
54.
That
the accused is woman and have 5 children from wedlock. 2001 PCRLJ 613.
55.
That
the Question of guilt or innocence of accused cannot be decided without giving
him an opportunity to explain the incrimination circumstances appearing against
him as deposed by the prosecution witness. (2001 PCRLJ 770).
56.
That
there is no allegation against accused except mere presence, which in view of
the enmity between the parties calls for further enquiry into the guilt. (1996
PCRLJ 1422).
57.
That
the applicant has been in custody for a period of 2 years 4 month and 9 days
till today. If 42 days are deducted which were the result of 2 adjournments
taken by the applicant the period of custody is still over 2 years. (2001 PCRLJ
874).
58.
That
it is better to err in releasing female accused carrying suckling baby on bail
than in remanding her child along with here to jail during trial. (1991 MLD
518).
59.
That
accused facing prosecution for unsuccessful attempt to commit Zina, was
released on bail. (1990 MLD 184).
60.
That
FIR had disclosed that in the opinion of the complainant speeches delivered by
the accused were seditious in nature within the meaning of S.124 PPC but the
FIR did not contain either whole text or the salient feature of the speeches
delivered by the accused. (2001 PCRLJ 1199).
61.
That
S.24 has provided two types of punishments, one for imprisonment for life and
other for imprisonment, which could extend to 3 years. 2nd part of punishment
provided under the said section did not fall under the prohibitory clause of S.
497 Cr.P.C. Court at bail stage could not determine that the accused is most
probably going to be awarded the sentence of life imprisonment and not up to
three years as provided in law. Case against the accused in circumstances is of
further inquiry entitling them to bail. [P.1209-d](2001 PCRLJ 1199).
62.
That
where prosecution had not been able to establish roughly a prima facie case and
had depend on further investigation, the unfolding of evidence or other
progress, and reasonable ground don’t emerge for believing that accused was
guilty the case would fall under purview of further inquiry. A case of further
inquiry is one, where in term of section 497 (1) Cr.P.C Reasonable Grounds does
not emerge for Believing that the accused is guilty, as alleged or in other
words, the prosecution has not been able to establish what may roughly be
termed as a prima facie case and is found to depend on further investigation,
the unfolding of evidence or other progress in the case. The accused there upon
becomes entitled to bail. (1990 PCRLJ 1085 Karachi).
63.
That
Court for purpose of bail has to see whether reasonable ground to believe
accused guilty of non bail able offence existing and that belief rests on
accusation contained in FIR and statement of witness U/S 161, 164 if any and
other special circumstances of case (P.2292 AO) (1984 PCRLJ 2291).
64.
That
the court has to graciously observe that even for purpose of bail law is not to
be stretched in favor of prosecution. If any benefit of doubt arises it must go
to the accused (1992 PLD SC 277) (PLD 1994 Lah 385)(1984 PCrLJ 2291-P.2293-d).
65.
That
the concept of benefit of doubt to an accused person is deep rooted in our
country. For giving him benefit of doubt it is not necessary that there should
be many circumstances which creates reasonable doubt in a prudent mind about
the guilt of accused then the accused will be entitled to the benefit not as a
matter of grace and concessions but as a matter of Right. (1995 SCMR 1345).
66.
That
Particular procedure for doing anything or for tacking action prescribed by law
has to be strictly followed and adhered to, otherwise the thing done or action
taken would be a nullity in the eyes of law. (p.1369-c)(2001 PCrLJ 1365).
67.
That
one case has no concern to other, as to be first heard. MLD 1997 P.1743.
68.
That
where the question involved was a matter of accounts, bail was granted in order
to enable accused to meet the charge against him (1988 PCrLJ 607).
69.
That
the court has not to evaluate evidence in manifest detail that are required to
consider as to whether upon the material on record, grounds for belief that the
accused has or has not committed an offence punishable with death or
imprisonment for life exist or not. (NLR 1989 SCJ 93).
70.
That
where there are cross-cases giving counter version of incident and it is not clear
who is the aggressor, if one party has been granted bail, the other party
should also be enlarged on bail. (NLR 1978 Cr. 70) (1978 PCrLJ 300).
71.
That
there are three categories of cross-cases. 1st would be one in out of the two
parties, prima facie there is a case against one party to have initiated
aggression on the other party and the later party has acted in self defense.
The party that acted in self defense would evidently be entitled to bail. The
2nd would one in which two opposite parties have, by chance, come across and
out of fear have assaulted each other in that case both parties would be
entitled bail on the assumption that they have acted in self defense. The 3rd
would be one in which two opposite parties have indulged in the fight at the
spur of the movement. In which case both parties may be enlarged on bail. (PLD
1977 Pesh 59)(PLJ 1977 pesh 39).
72.
That
bail may be granted where it would be more beneficial for the complainants than
detention of accused in prison. Where the accused had received money from the
complainant. There release may be of some help to the person who have advanced
certain amount to the petitioner to take further steps in the finalization of
their cases by the petitioner. Bail was granted to them. (1980 PCrLj 1017).
73.
That
where offence is such that accused is liable for diyat in case of conviction
amount of surety in case accused is released on bail should be less than the
amount of diyat U/S 323 Cr.P.C. If accused is absconder. Amount of surety can
be paid to the legal heirs of deceased. (PLD 1994 kar 517).
74.
That
where punishment for two offence for which accused is charged in the same, if
the court enlarge the accused on bail in one case it should do the same in
other case. (1989 PCrLJ 1000).
75.
That
where an offence is punishable with 7 year R.I. grant of bail is the rule (PLD
1983 AJ&K 47), Accused charged with an offence punishable with imprisonment
for a term which may extend to 5 years and also a five is entitled to bail.
(PLD 1988 Kar 64).
76.
That
offence can be divided in to 2 categories. 1 offence affecting the individuals
and offences affecting the whole society or community of a nation. If person is
accused of an offence which affects any individual and falls out of the ambit
of prohibitory clause the court may exercise its discretion in favor of the
accused by granting him bail as the bail in such case will be rule while its
refusal an exception but in case of an offence which affects any society then
the court may not exercise its discretion to grant bail to such an accused as
the refusal in such case be a rule while bail an exception but subject to
condition mentioned in S/497(1) or 497(2) (PLD 1995 kar 73).
77.
That
basic rule is bail and not jail, except where circumstances suggest thwarting
the course of justice by the accused (1992 MLD 880).
78.
That
inaptitude, inefficiency and negligent role of police, would not be deemed a
sufficient ground to deprive the accused of the benefit of loopholes in the
prosecution case. (PLD 1991 AJ&K 39).
79.
That
under the law an accused person is presumed to the innocent till he is proved
to be guilty the ultimate conviction and incarceration of a guilty person can
repair the wrong caused by mistaken relief of bail granted to him, but
satisfactory reparation can be offered to an innocent person for his
unjustified incarnation at any stage of the case in the event of his acquittal
in the long term. (1991 MLD 518).
80.
That
case of accused being completely identical to the case of co-accused already
enlarged on bail, accused was also entitled to be released on bail on the
principle of consistency. Accused was allowed bail accordingly. (1997 MLD 2785).
81.
That
the circumstances that police officer concerned has come to a conclusion that
there are no reasonable grounds for believing that the accused has committed a
non bail able offence, will not only be a relevant factor but will be a very
important consideration for the court in deciding the question of bail. If
investigation agency, which is an important instrument of state for the purpose
of prosecuting offenders, itself is not willing to say that the accused is
guilty, unless there are strong circumstances, otherwise so as to come to
another reasonable conclusion, the court should not discard such a conclusion
for the purpose of bail. (1984 PCrLJ 425).
82.
That
where police witnesses alone figure in attestation of recovery, the case would
require further inquiry (PLD 1997 Kar 484).
83.
That
where all the accused were armed with guns that still they did not fire the
same and only gave bellows to the deceased with the lack side of their fire
arms. This shows prima facie that the question where all the three accused
persons came with common intention to kill the deceased, would require further
inquiry at the stage of trial as there was nothing so for to suggest which of
the applicant named in FIR was responsible for causing the injury which was
sufficient in ordinary course of nature to cause death bail was granted. (1984
PCrLJ Kar 436).
84.
That
no crime empty of a rifle was recovered from the place of occurrence,
co-accused with the identical role, on having been found innocent during
investigation, had been placed in column No.2 of the challan which had rendered
the prosecution case doubtful against the accused who had already suffered for
3 years imprisonment. Case would further inquiry. (1998 MLD 2058).
85.
That
Contradictory opinion of I.O regarding occurrence. No reasonable ground
appeared to believe that accused were guilty of offence. (1989 PCrLJ 1189).
86.
That
place of stolen property was pointed out by the accused, it would not amount as
he was taking part in dacoity or robbery.
87.
That
the allegation of catching hold is a ususall allegation, which complainant
party always makes, to involve more persons other than the actual culprit.
88.
That
it is yet to be determined whether the provisions of section 34 are attracted
in this case or not.
89.
That
it is very clear law that where police witnesses allow figure in attester of
recovery, case would require further inquiry. (1984 PCrLJ 425).
90.
That
the opinion of the doctor is neither based on blood test report nor on report
of urine test. It is submitted that all the cough syrups contain alcohol as its
contents. The applicant is an old patient of bronchitis and asthma and he uses
cough syrups and some time, a spoon of brandy. The report of doctor is biased
and has been given at the instance of police who wanted to squeeze money from
the applicant for giving him confession for going done.
91.
That
the complainant, malafidely with ulterior motives , out of shock and anger had
roped the entire family of the applicant in this case.
92.
That
the applicant/ accused is resident of some locality as of complaint and place
of incident. The false implication of applicant /accused in this case of
attempt is very much doubtful.
93.
That
the property for which accused / applicant attempted to carry away is not on
record.
94.
That
this is false complainant and it is a civil nature case. The applicant’s family
had sent application to the Governor Sindh who was pleased to call report from
Deputy commissioner and D. M. Central Karachi. The deputy commissioner has
reported to the Governor House as “ the complainant on the subject matter got
inquired from S.D.M. new Karachi and he has submitted his inquiry report which
reflects that not only inefficiency but partiality to the extend where the law
is being manipulated to favour one particular party involved in a conflict. The
I.O has acted as such and the SHO by favouring the registration of the said FIR
is equally responsible. Therefore the SSP Central has been requested to take
action under the law”.
95.
That
the above report proves malafide intentions and ulterior motive, manipulation
and influence on police of the complainant who had managed to get this FIR
registered.
96.
That
that the elder brother of the applicant was arrested by the SHO who was granted
bail by the Learned Judicial Magistrate. Copy is enclosed as Annexure-E.
97.
That
the alleged offence does not fall under the prohibitory clause of section 497
Cr.PC.
98.
That
the applicant/accused is absolutely innocent and has committed no offence. He
is owner of Coach Services. His Coach services operates from New Karachi to
Orangi Town Via Nagan Chorangi- Sakhi Hassan- Hydri- Nazimabad- Guru Mandir-
Jama Cloth- Bolton Market- Tower- Gul Bai- Shershah- Labour Square and
Metrovilles. He is well know personality of all police stations of areas in
route of said coach services. Just for non fulfillment of heavy demand of
illegal money by complainant Inspector, he has been implicated in fabricated
and falsely lodged cases.
99.
That
the applicant / accused along with 03 others, was handed over to police station
Orangi. Where at false FIRs of this case was managed by complainant inspector
for non fulfillment of his undue demands & benefits.
100.
That
memo of arrest & recovery is fake and nothing incriminating has been
recovered from the possession of the applicant/ accused, the alleged recovery
is mysterious & foisted upon him.
101.
That
according to FIR and other case record no distinguishing features, of each one
of articles or case property, is given.
102.
That
the witnesses, who attested memo of arrest, recovery & place of incident
are sub ordinates of complainant Inspector, their evidence cannot be trust
worthy & confidence inspiring, specially in circumstances and version, for
which the case of applicant / accused is made subject matter of Constitution
Petition No. 555/2111 at Honorable High Court.
103.
That
the applicant / accused had allegedly fired upon police party of complainant /
Inspector and police party in defense had also fired upon him but according to
FIR no bullet symbols are recorded to hit at neither any where nor the attempt
to throw for explosion of the allegedly recovered pipe bomb is assigned to
applicant / accused. Reaming standstill with no assignation of role for
repetition or attempt to repetition of alleged act to kill police party,
specially when the applicant / accused was encircled and while allegedly the
applicant / accused had live arm & ammunition, is a matter to show the
whole prosecution story is fabricated & false.
104.
That
the applicant / accused never been involved in any criminal case. Since the
year 1992, he is engaged in business of Mini bus / Coach Services. His family
(Khandan) & all business is settled in local limits of Karachi. There is no
chance of his absconsion. His character, antecedents, associations and
community ties are quite relevant to consider that the applicant / accused
cannot be involved in this highly doubtful case.
105.
That
the applicant / accused is a dealer of Denim Garments & Stock Loads. He had
business connection of sale / purchase of Stock load of old Garments with
co-accused Sohail Anthony who, with ulterior motives, tried to play fraud with
applicant / accused also. At one hand he took cheque of payment Rs: 0230000/=
from applicant / accused and did not give the delivery of stock of old garments
to him and at other hand he passed the same cheque to complainant to pay off
his own liability toward complainant.
106.
That
there is no direct or indirect allegation of complainant against applicant /
accused and statement of co-accused has no value in eyes of law.
107.
That
FIR is delayed of 05 months, two different version of complainant vide two
different FIRs i.e [ (1) FIR No: 09/2015, U/S: 406 PPC, PS: Baasin (2) FIR of
subject case] of same incident, having no role of dealing with complainant, of
any kind, and order dated: 13-06-2015, passed by Honorable District &
Session Judge, south in Cr. M. A. No: 838/2015 upon application of applicant /
accused shows that the element of fabrication & manipulation exist in this
case.
108.
That
the circumstances against the applicant / accused are highly doubtfull &
the applicant / accused is not hardened, desperate or habitual offender, there
is no sufficient reason to believe that the accuse is involved in the alleged
offence, the case of applicant / accused requires further inquiry and covered
under sub section 2 of the section 497 Cr.P.C.
109.
That
the Challan has been submitted and the applicant/accused is no more required
for further investigation. Further detention of applicant/accused would serve
no useful purpose to prosecution.
110.
That
the applicant/accused is ready to fulfill any condition if imposed U/S sub
clause 5 of 21-D of A.T.Act and also is ready to furnish solvent surety to the
entire satisfaction of this Hon’ble Court.
111.
That
the question of vicarious liability, to connect the applicant/accused with the
alleged offense, arises.
112.
That
the applicant / accused is absolutely innocent and has committed no offence. On
25-12-2014, in night hours, upon behest of influential persons, the police in
plain cloath had arrested applicant / accused along with his real brother
Azmatullah, from his house. Since then he was in illegal confinement of
complainnat / Inspector and on 29-12-2014, the complainnat / Inspector by
commission of crime to inflict fire arm injury upon right thig of applicant /
accused and also to his real brother Azmatullah (to boath of them at same
place, one by one), has booked him in this false & separately lodged Case /
F.I.R. The order of inquiry by Honorable District & Session Judge vide Cr.
Petition 29/2015, is quite evident in this regard.
113.
That
the applicants / accused are innocent and they have not committed any offence.
Officer arrestor / S.H.O Raza, in order to save his skin, has made involved
them falsely in this case.
114.
That
the story narrated in FIR is concocted and afterthought as memo of arrest of
deceased in the Baldia Factory Case i.e Case No: 343/2012 --- U/S:
302/322/436/337/34 PPC --- PS: Site, does not exist and any Roznamcha record
with signatures or handwriting of any applicant / accused is also not available
on record. In these circumstances, the question of taking away the custody of
deceased by the applicants/ accused from the hands of A.Bhatti Police, is
sufficient to prove that the innocent persons are made involved through
fabrication & manipulation of Roznamcha record of Aziz Bhatti police.
115.
That
the facts (1) By whom the corpse of deceased was sent to hospital (2) By whom
the corpse of deceased was brought at hospital (3) By whom the head injury is
caused which resulted to death, are inconsistent with the allegations, leveled
in FIR as well as against applicant / accused, which make it a case of further
inquiry.
116.
That
the elements i.e no specific role to any one of accused, no recovery of
incriminating article from personal possession or on pointation of any one of
accused, no independent & direct evidence to connect the applicants /
accused with alleged offence, F.I.R is delayed of 22 hours, create the
circumstances against the applicants / accused as doubtful.
117.
That
the applicant / accused is absolutely innocent and has committed no offence.
The FIR is lodged upon behest of market compititators, with ulterior motives,
and in violation of mandatory provisions of Custom Act 1969 as without serving
the a show cause notice or without giving opportunity of hearing, the
complainant has given the wrong color to the matter of re-assessment of
chargeable duty.
118.
That
the applicant / accused has not caused a loss of single rupee to the public
exchequers. The subject matter against the applicant / accused was to call for
payment of additional amount of duty upon basis of re-assessment provisionally
of finally. The applicant / accused is not educated or technical. To determine
the classification of subject goods was very technical because of chemical
composition of subject goods. Due to which, and upon difference of opinion,
over determination of actual & correct classification, the complainant /
examining officer was also dependent of Lab Test.
119.
That
according to Lab test report, as it is mentioned in contents of F.I.R, the
subject goods cannot be classified in both classifications HC Code of Lead
Ingots & Tin Alloy.
120.
That
the date over F.I.R, the date over notice under section 171 of custom Act and
the date over seizure report shows that all proceedings is done at same time
and just for fabrication & manipulatation for falsely involvement.
121.
That
the matter requires further inquiry and the applicant / accused himself is the
victim of circumstances. He never been involved in any singe shipment of same
type of goods / nature in past and there is no element in support of
persecution as a reason to believe that the applicant / accused had intention
to give loss to public exchequer.
122.
That
the complainant has inserted his name with ill will, by fabrication &
manipulation of the real story, in this FIR / case.
123.
That,
the complainant has not stated that he was present at spot and also he has not
named any eye witness, anywhere in FIR & statement U/S 154 Cr.P.C. Thus the
guilt of applicant / accused, upon evidence of hearsay and non-assignation of
any role played, require further inquiry u/s 497 (2) Cr.P.C. and pending such
inquiry, the applicant prays for bail.
124.
That
the names of two eye witnesses namely Jal Ad & La are not cited in interim
Charge Sheet and also their presence does not exist at anywhere in statement
U/S 154 Cr.P.C, FIR or in statements of witnesses U/S 161 Cr.P.C of An Khan,
Kher, Zaan, Gus Khan, Aen Khan and SIP Ashraf. But after a considerable time
passed, an introduction of these two eye witnesses through only final challan,
is a point to prove fabrication & Malice on the part of complainant &
prosecution.
125.
That
the call data record - CDR of applicant / accused & opinion of I.O in
interim charge sheet are also facts available in record to consider that the
circumstances against the applicant / accused are highly doubtful and there is
no sufficient, cogent & trustworthy reason to believe that the applicant /
accused is involved in the alleged offence.
126.
That the elements that the applicant / accused, despite remaining in
police custody, made no confession before competent court nor the abductees had
been recovered from his possession and divergent stand in statements (One
statement U/S 164 Cr.P.C & Three statements U/S 161 Cr.P.C) of each one of
alleged abductees, is available on record. All of this prima facie creates serious
doubt in prosecution story. [2014 MLD 473, divergent stance of alleged
abductee. Three statements of alleged abductee are on the record which were
contradictory to one another. Alleged abductee had taken divergent stands at
different forums and the same had prima facie created serious doubt in
prosecution story mentioned in F.I.R. and benefit of such doubt is to go in
favour of accused---High Court expressed with concern that it has become
routine that when girl/abductee joined her parents she took summersault from
her earlier stance. Mere heinousness of offence is not a ground to refuse bail
to an accused person who otherwise is entitled for the same relief. Case
against accused requires for further inquiry into his guilt within the purview
of S.497(2), Cr.P.C.]
127.
That the applicant/accused is in very young age.
He is no more required for further investigation. Further detention of
applicant/accused would serve no useful purpose to prosecution but can affect negatively upon his
long-term growth.
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