IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Criminal Bail Application No. D- 50 of 2021
Present:
Justice
Zafar Ahmed Rajput
Justice
Amjad Ali Sahito
Applicant : Muhammad
Zaman Oghai s/o Muhammad
Yaqoob, through Mr.
Sudhamchand @
Sudhamo Kewal
Ramani, advocate
Respondent : The
State, through Mr. Zulfiquar Ali Jatoi,
Additional
l. Prosecutor General, Sindh
Date
of hearing : 07.09.2021
Date of order :
07.09.2021
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O R D E R
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ZAFAR AHMED RAJPUT, J:- Having been rejected his earlier criminal
bail application bearing No. 10/2021 in Spl. Case No. 06/2021 by the learned
Judge Anti-Terrorism Court,
Ghotki at Mirpur Mathelo vide order, dated 23.08.2021, the applicant/accused Muhammad
Zaman s/o Muhammad Yaqoob through instant criminal bail application seeks post-arrest bail in
Crime/FIR No. 11 of 2021, registered under sections 324, 353, 147, 148, 149,
P.P.C. & 7 Anti-Terrorism Act, 1997 at Police Station Katcho Bindi-II,
District Ghotki.
2. As per FIR, on 30.06.2021 at 1900 hours,
wanted accused Yaqoob Oghai and Rehman Oghai in Crime No. 10 of 2021,
registered under sections 302,324, 353, 147, 148, 149, P.P.C. & 7
Anti-Terrorism Act, 1997 along with 09 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 and thereby attempted to commit their
qatl-e-amd, for which they were booked in the FIR.
3. Learned counsel for the applicant has
contended that the applicant is innocent and has falsely and mala fidely been
implicated in this case by the police; that the name of the applicant does not
transpire in the FIR and his name was subsequent included in the case on the
basis of statement under section 161, Cr.P.C; that true facts of the matter is
that the applicant had filed Cr. Misc. Application No. 1202 of 2021 before the
Session Judge, Kashmore @ Kandhkot against the complainant of present FIR and
other police officials/proposed accused for
tress passing into his house and arresting illegally Mst. Hameedan, along with
her suckling child Zahid, and his father Muhammad Yaqoob, the Sessions Judge
sent the said application to DSP Complaint Cell, Kandhkot for recording the
statement of the applicant, who on 12.07.2021 appeared before the said DSP and
arrested by the police and, subsequently, his custody was handed over to P.S Katcho Bindi-II, later
S.H.O. of said police station involved him falsely in present case; that the
applicant never ever involved in any
criminal case; that no reasonable grounds exists to believe
that the applicant has committed the alleged offence; as such, he is entitled
for the concession of bail on the ground of further inquiry.
4. On the other hand, learned Addl. P.G. has
vehemently opposed the instant application on the grounds that the applicant is
the member of notorious Habibullah Oghai and Raham Dil Bheri gang of dacoits;
he participated in encounter with police along with other co-accused and thereby
attempted to commit qatl-e-amd
of the police officials, and since no case of further inquiry
has been made out, the application is liable to be dismissed.
5. We have heard the learned counsel for
the applicant, learned Addl. P.G and have perused the material available on
record with their assistance.
6. It reveals from the contents of the FIR that, on
30.06.2021, an encounter took place between eleven accused and police officials
within the territorial jurisdiction of P.S Katcho Bindi-II, District Ghotki. Out of eleven, six
accused are nominated in the FIR by their names, while five accused persons
have been shown as un-identified. It is an admitted position that the name of
applicant does not find mentioned in the FIR and his name has subsequently been
included in the case on the basis of statements of P.Ws./police officials as
one of the members of alleged unlawful assembly and participant of alleged
encounter. It is 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 though the
alleged encounter lasted for ten minutes, yet none from either side received
any injury; as such, application of section 324 P.P.C. could only be
determined at trial. 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 alleged encounter 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. 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.1,00,000/- (Rupees One Lac 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 07.09.2021
JUDGE
JUDGE