Present
Mr. Justice Aqeel Ahmed Abbasi.
Mr. Justice Nadeem Akhtar.
Date of hearing : 07.01.2013
Date of order : 07.01.2013
Applicants : 1. Fazal Wadood and 8 others,
through M/s. Abdul Wahab Baloch, advocate.
2. Saif Malook Shah and others
through Mr. Muhammad Siddiq Mirza, advocate
Versus
Respondent : The State
through Mr.Abdullah Rajput a/w Inspector Muhammad Aslam Joyo, P.S. Saeedabad.
Complainant through Mr. Mir Shahzad Ahmed, advocate.
O R D E R
Aqeel Ahmed Abbasi, J. Being aggrieved and dis-satisfied with the order dated 22.10.2012 passed by the Court of Anti-Terrorism, Hyderabad, in crime No.16/2012, registered at P.S. Dhabeji, under section 324, 353, 436, 147, 148, 149, 341, 342, 447, 504 PPC, whereby bail application of the applicants was declined, the applicants have approached this Court, seeking bail under section 497 Cr.P.C. subject to furnishing surety.
2. The precise prosecution story is that on the fateful date i.e. 25.07.2012 at 1600 hours, the above accused persons, in an attempt to restrain the Revenue Officials from removing encroachments and seeking possession of subject land on the directions of concerned Deputy Commissioner, assembled at National Highway with weapons, danda and block etc. The accused persons obstructed the police party from performing their duty and caused harassment and injury to them. It has been further alleged that the highway was blocked by the accused persons, whereas certain articles were burnt and the passers byes were also stopped, which created terror in the public, whereas, police officials received injuries. After shelling by the police, the accused disbursed, Highway was opened and the encroachment was removed. Thereafter FIR of the incident was registered at Police Station Dhabeji.
3. Learned counsel for the applicants have submitted that the applicants are innocent and have been falsely implicated in the instant crime, whereas a Constitutional Petition i.e. C.P.No.D-599/2009 was earlier filed by the inhabitants of subject land including above named accused persons in respect of subject land against the official respondents, who were attempting to dis-possess the petitioners from their homes without due process of law. Per learned counsel, restraining order was passed against the District Administration and the Revenue Authorities whereby they were directed to act strictly in accordance with law and not to dis-possess the petitioners from the subject land without due process of law. They were further directed that if any action for removal of alleged encroachment or dispossession of the petitioner is required, proper notices may be issued to each petitioner. Per learned counsel, no notice whatsoever was ever issued to the petitioners who have been forcibly dispossessed from their houses, whereas a contempt application in the above mentioned constitutional petition has already been filed against official respondent. Per learned counsel, in order to justify their illegal act, the respondents have falsely implicated the above-named accused persons, whereas, neither any injury has been caused to any one nor any recovery whatsoever has been effected from the accused persons. Learned counsel further states that the houses of the applicants have been demolished by the respondents without due process of law on the one hand, whereas they have been implicated in this false case. Per learned counsel, as per allegations stated in the FIR no cognizable offence has been made out, and the matter requires further inquiry, whereas no private witness of the alleged incidence or recovery has been shown, therefore, applicants may be admitted on bail upon furnishing solvent surety. It is stated that some of the accused persons are even deaf and dumb and of advanced age. Photographs of the date of incidence have also been placed on record in support of their contention.
4. Conversely, learned APG and the counsel for the complainant, though could not controvert the facts as stated hereinabove, however, opposed the grant of bail to the accused persons as according to them the accused persons have been nominated in the instant crime with specific role.
5. We have heard both the learned counsel for the applicants and the learned APG, and have also perused the record. It appears that the contention of the counsel for the applicants with regard to the possession of the applicants over the subject land, filing of the Constitution Petition before this Court and the restraining orders passed therein against the official respondents remained undisputed. It has also come on record that the District Administration with the help of police party has taken over the possession of the subject land and the house built on such subject land appears to have been demolished during the police action. From perusal of the contents of FIR and on tentative assessment of the record, it is noted that the main common allegation against the above accused persons is that they obstructed the police party from removing encroachments and dispossessing the applicants from subject land, blocked highway, caused harassment to the public and inflicted injuries upon the police personnel. However, as per MLO report furnished by the prosecution, no bullet injury or grieves hurt appears to have been inflicted upon any injured persons. No private witness of the alleged incident and recovery have been associated by the police nor any detail with regard to recovery of any empties from the place of incident or any damage to police vehicles during the alleged incidence has been given. Prosecution story, under the circumstance, cannot be considered free from doubt, whereas the matter requires further inquiry. We are of the view that the applicants have made out a case for grant of bail at this stage. Accordingly, the applicants are admitted to bail subject to furnishing solvent surety in the sum of Rs.50,000/- each and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court.
6. Needless to observe that the observation made herein are tentative in nature and shall not prejudice the merits of the case which may be examined strictly in accordance with law and on the basis of evidence on record.
7. However, it is clarified that if, the applicants misuse the concession of bail in any manner, the learned trial Court shall be at liberty to proceed against the applicants as per law.
J U D G E
J U D G E
Nadeeem