Cr.B.A.No.D-226 of 2016

Present:

Mr. Justice Aqeel Ahmed Abbasi &

Mr. Justice Muhammad Faisal Kamal Alam.

Date of hearing: 14.04.2016

Date of reasons: 21.04.2016

Mr. Ghulam Shabir Shar Advocate for applicant.

Mr. Zulfiqar Ali Jatoi, Deputy Prosecutor General.

Mr. Shafique Ahmed Leghari, State Counsel.

O R D E R

AQEEL AHMED ABBASI, J. Being aggrieved and dissatisfied with the order dated 12.01.2016 passed by the learned Judge, Anti-Terrorism Court, Khairpur, in special case No.93/2015, crime No.166/2015 registered at police station, Sobhodero, District Khairpur, under Sections 324, 353, 216, 148, 149 PPC, 4/5 Explosive Act, 7 / ATA, 23(1)A of Sindh Arms Act, whereby the bail application filed by the applicant has been dismissed, the applicant has filed instant bail application under Section 21-D of ATA, 1997 read with Section 497 Cr.P.C, seeking release of the applicant on bail subject to furnishing surety.

2. Learned counsel for the applicant has vehemently argued that the applicant is innocent who has been falsely implicated in the above crime by the police on the allegation of police-encounter by foisting unlicensed rifle upon the applicant, whereas, neither anyone from police party received any injury nor even the vehicle of the police was damaged. Per learned counsel, even from bare perusal of the contents of aforesaid FIR, it is evident that no specific role whatsoever has been assigned to the present applicant with the alleged offence, whereas, the applicant has been shown as facilitator of accused persons nominated in crime No.141/2015 registered at police station, Ranipur. Per learned counsel, in spite of the allegation that the police party raided the mango garden of Mirs on the spy information, whereas, the alleged police-encounter took place, the police did not associate any private mashir of the locality at the time of preparing mashirnama of vardat and arrest, as well as alleged recovery of rifle from the possession of the applicant. It has been contended by the learned counsel that the IO of the aforesaid FIR after investigation formed an opinion that the present applicant is not involved in the alleged crime. However, the learned trial Court did not agree with such opinion. It has been further contended by the learned counsel for the applicant that the applicant has no criminal record and has been falsely implicated in the aforesaid crime on the general allegations of having facilitated the accused persons nominated in crime No.141/2015 of PS Ranipur, however, no material whatsoever has been produced by the police which may connect the present applicant with the alleged offence. While concluding his arguments learned counsel for the applicant has also referred to the criminal miscellaneous application No.D-577/2015 filed by the brother of the present applicant namely Ali Akbar under Section 491 Cr.P.C on 03.11.2015, wherein it is specifically stated that on 02.11.2015 the present applicant, his father and other family members were illegally arrested by police in absence of any criminal case registered against them, and has prayed that raid may be conducted and detainees may be got released from the illegal custody of police.

3. However, according to learned counsel, in order to justify the illegal arrest and detention of the present applicant, the police registered the aforesaid false FIR alleging police-encounter, therefore, aforesaid criminal miscellaneous application was disposed of by directing the SSP, Sukkur, to examine the allegations as contained in the aforesaid criminal miscellaneous application under Section 491 Cr.P.C and also to trace out the whereabouts of the remaining detainees. Per learned counsel, the matter requires further inquiry, whereas, challan has been submitted and the applicant is no more required for further investigation and prays that the applicant may be enlarged on bail subject to furnishing surety. In support of his contentions, learned counsel for the applicant has placed reliance on the following cases:

Muhammad Fayaz v. The State, (2010 YLR673), Karamat Khan v. The State, (2011 YLR 1390), Arshad Masih v. The State, (2012 YLR 2568), Farooq Ahmed v. The State, (2013 YLR 998) and Farzan Khan v. The State, (2014 YLR 2189).

4. Conversely, learned Deputy Prosecutor General could not controvert the submissions made by the learned counsel for the applicant, however, submits that since recovery of unlicensed rifle has been effected from the applicant, he may not be enlarged on bail.

5. We have heard learned counsel for the applicant and learned Deputy Prosecutor General, perused the record with their assistance and have also gone through the case-law relied upon by the learned counsel for the applicant in support of his submissions.

6. From tentative assessment of the record and the material collected by the prosecution, it appears that no specific role has been assigned to the present applicant with the alleged offence of police-encounter, whereas, no one has received any firearm injury in spite of the allegation that such police-encounter continued for about 10 minutes, even no vehicle has been shown to have been damaged out of such police-encounter and alleged continuous firing from both sides. The raid of the police on the basis of alleged spy information at the place of incident and the arrest of the present applicant also appears to be doubtful, as no independent mashir has been associated while preparing the mashirnama of vardat and arrest as no explanation for violating the provisions of section 103 Cr.P.C has been given. The fact of filing criminal miscellaneous application under Section 491 Cr.P.C by the brother of the present applicant on 03.11.2015 alleging illegal arrest of the applicant and his father along with other persons on 02.11.2015 by the police has not been disputed, which also creates doubt in the prosecution story, according to which arrest of applicant Shahzado has been shown by the police in Crime No.166/2015 on 7.11.2015.

7. Keeping in view hereinabove facts and circumstances of the case and by respectfully following the ratio in the aforesaid reported decisions, we are of the opinion that the applicant has made out a case of further inquiry in terms of section 497 (2) Cr.P.C. Accordingly, the applicant was granted bail in the sum of Rs.2,00,000/- (two lac) and PR bond in the like amount to the satisfaction of the learned trial Court vide our short order dated 14.04.2016, above are the reasons for such short order.

JUDGE

JUDGE

N.M.

Vivid – bright

Oblivious - unaware

Phraseology - wording

Ex-cathedral -

Transcendental – inspiring – mystical