IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

Cr. Bail Application No.D-09 of 2021

           

 

                                          Before:-

 

                                          Mr. Justice Muhammad Junaid Ghaffar

                                          Mr. Justice Zulfiqar Ali Sangi

 

 

 

Applicant:                          Muhammad Rashid Rafique and others

                                          Through Mr. Fayyazuddin Rajper, Advocate

 

Complainant:                     Kaleemullah Memon, through

                                          Mr. Nisar Ahmed Bhanbhro, Advocate

 

State:                                 Through Mr. Khalil Ahmed Maitlo, DPG

 

Date of hearing:                 12.01.2022

 

Dated of order:                   12.01.2022

                                         

 

O R D E R

 

Zulfiqar Ali Sangi, J:                      Applicants/accused Muhammad Rashid Rafique, Badal Khan, Jabir @ Iqbal and Khalid Hussain, are seeking pre-arrest bail in FIR No.276/2020, registered at Police Station B-Section Khairpur, under sections 397, 353, 337-H (ii) PPC and 6-K of ATA. Their earlier pre-arrest bail plea was declined by the learned Special Judge Anti-Terrorism Court Khairpur, vide order dated 27.01.2021, hence they approached this court for the same relief.

2.                          Concisely the facts of the prosecution case are that on 21.12.2020, complainant Kaleemullah Memon who is a medical officer was present on his duty at Civil Hospital Khairpur and was busy in his official work along with Yasir Visar and Afzal Memon, when at about 1400 hours seven persons armed with pistols entered into his office to whom he identified as Jabir, Badal, Khalid Hussain, Sajid and Rashid while two were unknown. Accused Jabir pointing his pistol at the complainant demanded bhatta from him, which he refused on which accused Badal and Rashid caused butt blows of their pistols on his head and blood started oozing from his head, while accused Khalid, Sajid and the unidentified persons robbed Rs.8000/- from him. They raised cries to which Ali Sher, Barkat and others came there who also identified the accused. The accused persons while issuing threats of dire consequences and making aerial firing fled away. Complainant after getting first-aid appeared at Police Station and lodged such FIR.

3.                          Learned counsel for the applicants contended that the applicants are innocent and have falsely been involved by the complainant with malafide intention and ulterior motive. He next contended that through the incident had taken place in the hospital which is a busy place but no independent person has been associated as witness or mashir. He also contended that as per prosecution story the accused had also made aerial firing but no empty bullet was recovered from the place of incident. He also contended that the offence with which the accused are charged do not fall within prohibitory clause of section 497 Cr.P.C while section 6-K of ATA has been misapplied in this case as its ingredients are missing. Lastly he submitted that the parties have settled their dispute outside the court and prayed that in these circumstances the interim pre-arrest bail granted to the applicants may be confirmed.

4.                          Learned counsel for the complainant as well as learned DPG has conceded for confirmation of interim pre-arrest bail on the ground that the parties have patched up outside the court.

 

5.                          We have heard learned counsel for the parties and perused the material available on record with their able assistance.

 

6.                          Admittedly the offence u/s 337-H(ii) and 353 PPC are bailable, while section 397 PPC carries punishment for seven years as such does not fall within prohibitory clause of section 497 Cr.P.C. and in such like cases grant of bail is a rule and refusal is an exception as has been held by Honorable Supreme Court in the cases of Tariq  Bashir V. The State (PLD 1995 SC 34), Muhammad Tanveer V. The State and another (PLD 2017 SC 733) and Shaikh Abdul Raheem versus The State and another (2021 SCMR 822). So far section 6-K of ATA is concerned, its applicability shall be considered by the trial court after recording evidence of the prosecution witnesses.

 

7.                          The Honorable Supreme Court of Pakistan in the case of Muhammad Imran (Crl. P. No.860-L/2021) vide order dated 05.08.2021 has formulated the grounds for the case to fall within the exception meriting denial of bail as (a) the likelihood of the petitioner’s abscondence to escape trial; (b) his tampering with the prosecution evidence or influencing the prosecution witnesses to obstruct the course of justice; or (c) his repeating the offence keeping in view his previous criminal record or the desperate manner in which he has prima facie acted in the commission of offence alleged. Further in the said order Honorable Supreme Court has held that the prosecution has to show if the case of the petitioner falls within any of these exceptions on the basis of the material on the record.

 

8.                          Learned counsel for complainant and learned APG have not been able to point out these grounds to bring the case of applicants under exceptions as stated above, however they conceded the request of the applicants. Deeper appreciation of evidence is not permissible at bail stage; however on tentative assessment of material, applicants have made out their case for confirmation of their pre-arrest. Resultantly, instant bail application is allowed and the interim pre-arrest bail already granted to the applicants / accused by this court vide order dated 02.02.2021, is hereby confirmed on same terms and conditions.

 

9.                The observations made herein above are tentative in nature and will not cause any prejudice to either party at the trial.

 

 

                                                                             J U D G E

 

 

J U D G E