IN THE HIGH COURT SINDH BENCH AT SUKKUR
Criminal Bail Application No. D- 40 of 2021
Present:
Justice Zafar Ahmed Rajput
Justice Amjad Ali Sahito
Applicant :
Abdul Khalique @ Gulzar s/o Pir
Bux Mangnejo, through Mr. Ghulam Shabbir Shar, advocate
Respondent : The
State, through Mr. Zulfiquar Ali Jatoi,
Addl.
P. G.
Date
of hearing : 24.08.2021
Date of order :
24.08.2021
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O R D E R
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ZAFAR AHMED RAJPUT, J:- Applicant/accused Abdul Khalique @
Gulzar being abortive to get the
concession of post-arrest bail from Anti-Terrorism Court, Khairpur in Special
Case No. 08 of 2021, vide order dated 11.06.2021, through this application
seeks the same concession from this Court in Crime/FIR No. 07 of 2021,
registered under sections 302, 324, 353, 148, 149, P.P.C. and 7 ATA at Police
Station, Tando Masti Khan.
2. Precise allegations against the
applicant, as per the FIR, are that on 20.01.2021 at 1200 hours, he along with dacoit
Raheem Bux @ Rahmoon Phulpoto and other 12 co-accused, duly armed with deadly
weapons, formed an unlawful assembly and in prosecution of common object of
such an unlawful assembly committed offence of rioting, deterred police
officials from discharging their
official duties, fired on police officials with intention to commit their
murder and thereby caused the death of police constable Muhammad Siddique
Narejo, for which applicant, along with 13 other co-accused, was booked in the FIR.
3. Learned counsel for the applicant has
mainly contended that the applicant is innocent and has falsely been implicated
in this case; that on 20.01.2021, SHO. SIP Ameer Ali Pathan of police station
Faiz Muhammad Narejo, who has inimical terms with the applicant’s family,
arrested the applicant from Kot Mir Muhammad and then on the next day he half
fried him by causing fire shot on his right leg and then he shifted him to
Civil Hospital, Khairpur; that the applicant did not take part in alleged
encounter; that as per enquiry report of DSP Complaint Redressal Counter Ghotki,
the applicant was not present at the relevant at the place of alleged
occurrence; that the allegations against the applicant are absurd and baseless
and no reasonable grounds exists to believe that he has committed the alleged
offence; as such, he is entitled for the concession of bail on the ground of
further inquiry.
4. Conversely, learned Addl. P.G. has vehemently opposed the instant application
on the grounds that the applicant is the member of notorious Rahmoon gang of dacoits;
that the applicant was arrested in injured condition during alleged police
encounter by the police and an un-licensed rifle was also recovered from his
possession and since no case of further inquiry has been made out, the applicant
is not entitled for the concession of bail.
5. We have heard the learned counsel for
the applicants, learned Addl. P.G and have perused the material available on
record with their assistance.
6. The contents
of the FIR are indicative of the facts that the applicant
is the member of Rahmoon gang of dacoits and he was arrested on 21.01.2021 in injured
condition by the police during an encounter took place between said gang
of dacoits and police in the Jungle of
Pan, situated in Tando Masti Khan. It is; however, an admitted position that
there is no previous criminal record of the applicant suggesting that he was
ever involved in any criminal case. It is also an admitted position that there
is no direct evidence against the applicant for causing death of police
constable Muhammad Siddique Narejo. No
specific role has been assigned to applicant and the allegations against him
are of general nature. So far sharing of common object is concerned;
suffice it to say that whether accused shared common object with the principal
offender(s) when not a single injury has been attributed to him, guilt of such
accused calls for further inquiry. Similarly, in the instant case, only
allegation against the applicant is that of his presence at the time of murder
of deceased at the spot being a member of an unlawful assembly duly armed with
weapon; besides it, no other overt act has been attributed towards him. Hence,
the question of vicarious liability of the applicant with regard to the
commonness of his object for committing alleged offence will be determined at
the trial. It is also an admitted
position that on the application of applicant’s father, DIG, Sukkur
Range, directed SSP (Complaint Cell) Sukkur to conduct enquiry, who deputed DSP
Complaint Redressal Counter, Ghotki as an enquiry officer and as per his
enquiry report, dated 01.03.2021, the
CDR of the applicant revealed that he had contacts with dacoit Raheem Bux @
Rahmoon Phulpoto but the CDR as well as ground information revealed that the
evidence regarding his presence at the place on the date and time of police
encounter could not be found. In these circumstances, the case against the applicant
calls for further enquiry as envisaged under sub-section (2) of Section 497,
Cr. P.C. We; therefore, admit the applicant to bail subject to his furnishing
solvent surety in the sum of Rs.2,00,000/- (Rupees Two Lacs only) and P.R. Bond
in like amount to the satisfaction of the trial Court.
7. Needless to mention here
that the observations made hereinabove are tentative in nature and would not
influence the trial Court while deciding the case of the applicant/accused on
merits. However, in case the applicant misuses
the concession of bail in any manner, the trial Court shall be at liberty to
cancel the same after giving him notice, in accordance with law.
8. Above are the reasons of
our short order dated 24.08.2021
JUDGE
JUDGE