IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

 

Crl: Bail Application No.D-           412     of 2014

 

 

Before:-         Mr.Justice Irfan Saadat Khan &

                        Mr. Justice Shahab Sarki,

 

 

FOR HEARING

 

 

 

20th November, 2014.

 

 

                        Mr. Sohail Ahmed Khoso, Advocate for the Applicant.

                        Mr. Syed Sardar Ali Shah Rizvi, A.P.G for the State.

 

 

O R D E R

 

 

IRFAN SAADAT KHAN, J:-  This is application for grant of bail moved by  applicant/accused Muhammad Ameen, in Crime No. 55 of 2013 of police station, Hingorja, for offences punishable under sections 324, 353, 396, 148, 149 P.P.C & 7-Anti-Terrorism Act, 1997.

 

2.                     Mr. Sohail Ahmed Khoso, has appeared on behalf of the applicant/accused and at the very outset submits that the bail application of the co-accused namely Wazir Shar has already been dismissed by a bench of this Court vide order dated 17.4.2014 in Criminal Bail Application No.D- 703 of 2013, which file is attached with the instant bail application.

 

3.                     Briefly stated the facts of the prosecution case are that on 02.7.2013, on behalf of State, ASI Inayatullah Dhoodhan lodged the F.I.R at police station, Hingorja, stating therein that on the day of incident i.e 01.7.2013 he along with his subordinate staff namely PC Moula Bux, PC Shah Nawaz, PC Fateh Muhammad left police station and were patrolling when at about 2330 hours they  reached at police picket Pir Parial Shah where PC- Faiz Muhammad Tehbo and PC Ghulam Sarwar Maitlo were also present on their duty.  They then saw one bus coming from Karachi and within their sight six armed persons immediately came on the             road from eastern side and the accused persons in order to stop the said bus made firing due to which the bus stopped. On the light of Bus and head light of police mobile the police party identified three accused persons namely Muhammad Ameen alias Meenu, who was with a gun, Wazir  with a Kalashnikov, Hakim with a Repeater, while three other accused were not identified by the police, who were also carrying weapons. The accused persons then started committing robbery from the passengers and deterred the police party from performing their lawful duties and also made direct firing with the intention to commit their Qatal-e-Amd. However in retaliation thereof the police party also made firing on the accused persons, which continued for about 10 minutes. Due to the firing by the accused persons PC Ghulam Sarwar received fire arm injuries. All the accused persons then by taking the advantage of darkness ran away from the place of incident. Thereafter police party went inside the bus. The passengers then disclosed them that 06 accused persons had robbed cash of Rs.10,000/11,000-00 and two mobiles from them and on their resistance accused persons made fires  upon the passengers due to which one baby Hiba aged about 5 years received fatal injuries. PC Ghulam Sarwar and the baby Hiba were then referred to the Hospital Hingorja for medical treatment where the baby Hiba succumbed to her injuries. Then the complainant lodged the instant F.I.R on behalf of the State.

 

4.                     Mr.Sohail Ahmed Khoso, Advocate has appeared on behalf of the applicant/accused and submitted that there is a delay of 15 hours in lodging the F.I.R. He further submitted that applicant was not identified by the complainant and there is no direct evidence against him. He stated that though it is averred that a number of passengers were travelling in the bus, but it is strange to note that not a single passenger was associated in the instant case as witness. He further submitted that no crime weapon was recovered from the applicant/accused. He further submitted that on the day of incident the accused was admitted in the Hospital at Nawab Shah and in this regard has raised the plea of alibi. He further submitted that the applicant/accused was identified in the vehicle light only which is a weak type of evidence. Learned Counsel in support of his above contentions has relied upon the following decisions:

 

2011 P.Cr.L.J 918{Karachi}

case of Muhammad Ashraf and another Vs. The State.

 

                        2011 Y L R 1156, {Karachi},

case of Abdul Hameed Vs. The State.

 

                        2004 P.Cr.L.J 1925(Supreme Court (Azad J&K)

case of Muhammad Sagheer Vs. The State through Police Station, Islam Garh, Mirpur and another.

 

2014 S C M R 1669

case of  Munir Ahmed Vs. The State and another.

 

 

5.                     Mr. Syed Sardar Ali Shah Rizvi, A.P.G has appeared on behalf of the State and vehemently refuted the arguments advanced by the learned Counsel for the applicant/accused and stated that the role of the applicant/accused is identical to that of the co-accused  Wazir Shar,  who has already been refused bail by this Court. He further submitted that the applicant/accused has been clearly identified by the complainant party and there is no question of any mistaken  identity. He further submitted that the plea of alibi taken by the applicant/accused could only be taken before the trial Court. He, therefore, submitted that not a single distinguishable factor has been pointed out by the applicant/accused, with regard to the role of the present applicant to distinguish his case from that of co-accused Wazir Shar. Hence according to him the bail application filed by the applicant/accused is also liable to be declined / rejected. In support of his contentions, the learned Counsel has relied upon the decision given in the case of  Ghulam Ahmed Chisti Vs. The State and another reported in (2013 S C M R 385).

 

6.                     We have heard both the learned Counsel at some length and have perused the record. We fully agree with the contentions raised by the learned A.P.G for the State that there is hardly any question of any mistaken identity of the applicant/accused in the instant case, as it is evident from the contents of the F.I.R that the police party has clearly identified him. We have further noted that not a single distinguishable factor, with regard to the role assigned to the applicant, has been mentioned by the accused.  It is noted that all the points raised in the instant bail application were already raised in case of co-accused which after examination were found to be not tangible since all these points require deeper appreciation, which could not be done at bail stage. We have further noted that the applicant/accused has prima-facie committed a heinous offence, as in the instant crime a baby girl has lost her life and a police official has also received fire injury. It is also noted that the applicant/accused was clearly identified by the complainant and P.Ws and in this regard no malafide could be attributed to the P.Ws. We have further noted that the applicant/accused has been assigned a specific role in the F.I.R, as he was found to be engaged in committing robbery at the highway. It is also a matter of record that empties were recovered by the police from the place of incident and the plea of alibi was considered by the trial Court. We further agree with the learned A.P.G that the plea of alibi requires deeper appreciation hence it could only be decided by the trial Court after recording evidence. It is also a matter of record that the applicant/accused has remained an absconder and fugitive of the law for quite a long time. We, in the light of above tentative assessment have come to the irresistible conclusion that the applicant/accused is not entitled for the concession of bail. The decisions relied upon by the learned Counsel for the applicant/accused are found to be distinguishable from the facts obtaining in the instant bail application. The bail application of the applicant/accused thus is hereby dismissed.

 

                        Above are the reasons for our short order of even date.

 

 

JUDGE

JUDGE 

A.R.BROHI