IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD
Cr. Bail Application No.D-71 of 2016
Cr. Bail Application No.D-72 of 2016
DATE ORDER
WITH SIGNATURE OF JUDGE
Present:
Naimatullah Phulpoto, J
Rasheed Ahmed Soomro,J
Date of hearing: 19.01.2017
Date of decision: 27.01.2017
Applicant: Ghulam Abbas
Through Mrs. Razia Ali Zaman Khan
Patoli, Advocate.
The State: Through
Syed Meeral Shah D.P.G.
-.-.-.
O R D E R
RASHEED AHMED SOOMRO,J- Applicant/accused Ghulam Abbas seeks post arrest bail in Crime No. 45 of
2016 registered at P.S Site Area for offences under Sections 324, 353, 392,
337, 34 PPC and 6/7 A.T.A,1997, as well as in FIR bearing Crime No.46 of 2016
registered at P.S Site Hyderabad under Section 23-A Sindh Arms Act, 2013.
2. Brief facts of the prosecution case as disclosed in the FIR
are that on 11.09.2016 ASI Sarfraz Ali Qureshi of P.S Site Hyderabad left
Police Station alongwith his subordinate staff for patrolling duty. When police
party reached at Mushtaque chowk, ASI received secrete information that one
Naveed s/o Yakoob Panhwar wanted in Crime No.40 of 2016 was present in the
house of Abbas at Murshidabad. ASI Sarfraz Ali informed the SHO Imran Rasheed.
Thereafter, ASI alongwith SHO and police party proceeded to the house of Abbas.
It is alleged that Abbas was narcotic dealer, his door was knocked it was
opened. It is alleged that accused Abbas was carrying 222 Rifle,
he snatched Walky-talky set and Government Rifle from P.C Waqar. It is further
stated that Naveed Panhwar armed with 12 bore gun, Zaheer Abbas armed with TT
pistol came out of the house and fired upon the police party with intention to
kill them. It is alleged that SHO Imran Rasheed sustained firearm injuries at
his leg. Police party fired in defence. In the cross firing, it is alleged that
a woman present in the house sustained firearm injuries and she fell down.
Thereafter, SHO Imran Rasheed and injured woman were taken to the hospital for
treatment. It is mentioned that accused Naveed Panhwar, Abbas and Zaheer Abbas
succeeded to run away from place of occurrence while taking benefit of
darkness. It is alleged that police party chased the accused Abbas. He entered
into some house and started firing upon police party. Police also fired in the
self defense. In the result, it is alleged that Zaheer Abbas received firearm
injury and succumbed to injuries at spot. In the F.I.R. it is mentioned that
deceased Zaheer Abbas was carrying TT Pistol in his hand. Walky-talky set and
SMG Rifle were also lying near the dead body. Incident was reported to the high
police officials and FIR was lodged by ASI Sarfraz Ali Qureshi on behalf of the
State. It was recorded vide Crime No.45/2016 for offences under Sections 324,
353, 392, 337, 34 PPC and 6/7 A.T.A. FIR bearing Crime No.46 of 2016 was also
lodged by ASI Sarfraz Ali Qureshi against accused Ghulam Abbas, which was
recorded under 23-A Sindh Arms Act, 2013.
3. After usual investigation challan was submitted against the
accused under Sections 353, 324, 392, 337, 34 PPC and 6/7 A.T.A. before the
learned Judge, Anti-Terrorism Court, Hyderabad.
4. Bail after arrest applications were moved on behalf of the
applicant before the learned Judge Anti-Terrorism Court, Hyderabad, but the
same were dismissed vide his orders 13.10.2016.
5. Mrs. Razia Ali Zaman Khan Patoli, Advocate for
applicant/accused Ghulam Abbas contended that this was the case of fake
encounter. The son of the applicant was murdered by the police in the fake
police encounter and Mst. Bakhat Rana sustained firearm injuries. It is
contended that injuries sustained by Mst. Bakhat Rana have been suppressed by
the Investigation Officer. It is contended that in fact D.S.P Makhdoom Mukhtiar
Ali Solangi had evil eye upon the daughter of the applicant/accused to which
applicant/accused had protested and in the result son of the applicant/accused
was murdered in the fake encounter. Lastly, it is contended that allegation
against the applicant/accused regarding causing of the firearm injury is of
general in nature and from the facts of the case, the ingredients of Section
324, P.P.C are not made out and very prosecution case required further inquiry.
In support of her contention she has relied upon the following cases:
i. Dilmurad V/s. The State (2010 SCMR
1178)
ii. Jan Muhammad alias Janan V/s The State (2016 P.Cr.L.J Note 42)
iii. Javed V/s. The State (2016 P.Cr.L.J Note 54)
iv. Muharram V/s. The State (2012 MLD 599)
v. Shah
Faisal V/s. The State
(2011 MLD 1075)
vi. Syed Amanullah Shah versus The State (PLD 1996 Supreme Court 241)
6. Syed Meeral Shah D.P.G. for the State argued that name of
the applicant/accused transpired in the FIR and he had fired upon the police
party with intention to kill. However, learned D.P.G. after perusal of the
police papers informed that injuries suffered by injured Mst. Bakhat Rana have
been suppressed by the Investigation Officer and her statement was also not
recorded. However, learned D.P.G opposed the bail applications.
7. We have carefully heard the learned Counsel for the parties
and perused the relevant record.
8. From the perusal of record it transpired that son of the
applicant namely Zaheer Abbas has been killed in the alleged incident and Mst.
Bakhat Rana w/o applicant Ghulam Abbas has sustained firearm injuries in the
incident but the Investigation Officer has suppressed her injuries. According
to prosecution case, there was exchange of fires from both sides with
sophisticated weapons in which only one S.H.O from police party received
firearm injury on his non-vital part of body. Plea has been raised on behalf of
accused that D.S.P had evil eye upon the daughter of accused Ghulam Abbas and
in the fake encounter, son of accused was killed and his wife was injured. From
the facts and circumstances of the case, apparently ingredients of Section 324
PPC and 7 A.T.A 1997 are yet to be determined at trial. It is settled law that
whenever reasonable doubt arises with regard to the participation of an accused
person in the crime or about the truth or probability of the prosecution case
and the evidence proposed to be produced in support of the charge, the accused
should not be deprived of benefit of bail and in such a situation it would be
better to keep him on bail than in the jail during the trial. Reliance has rightly
been placed upon the case of SYED AMANULLAH SHAH versus THE STATE (PLD 1996
Supreme Court 241).
09. For the aforesaid facts and reasons we hold
that prima facie case against the applicant/accused requires further
inquiry. Therefore, concession of bail is extended to the applicant Ghulam
Abbas in Crime No. 45 of 2016 under Sections 324, 353, 392, 337, 34 PPC and 6/7
A.T.A,1997, subject to his furnishing solvent surety in the sum of
Rs.1,00,000/- and P.R bond in the like amount. Crime No. 46 of 2016 under
Section 23-A Sindh Arms Act, 2013 is connected. As bail is granted in main case,
as such, for the above stated reasons bail is granted to applicant/accused in
the sum of Rs.50,000/- and P.R bond in the like amount to the satisfaction of
Trial Court.
10. Needless to mention that observation made
hereinabove are tentative in nature and the Trial Court will not be influenced
by it while deciding the case on merits.
Both bail applications stand disposed of in above terms.
JUDGE
JUDGE
Ali Haider