ORDER SHEET
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Crl. B.A. No.D-118 of 2017
DATE OF HEARING |
ORDER WITH SIGNATURE OF JUDGE. |
For hearing.
Present:
Mr. Justice Syed Hassan Azhar Rizvi
Mr. Justice Rasheed Ahmed Soomro.
Mr. Nisar Ahmed Bhanbhro Advocate for applicant.
Mr. Saleem Akhtar Buriro, Additional P.G. for the State.
Date of hearing: 12-04-2017
O R D E R
RASHEED AHMED SOOMRO J., Applicant Ghulam Mustafa Phulpoto seeks post arrest bail in
crime No. 01 of 2017 registered with Police Station, Piryaloi for offences under
sections 302, 395, 324, 353, 148, 149, 120-B PPC read with section 7 ATA, 1997,
as his bail plea was turned down by learned Judge, ATC, Khairpur vide order
dated 18.02.2017, passed in special case No.05 of 2017.
2. The facts of the prosecution case, in nutshell, are that on 02.01.2017 at 1300 hours, complainant SHO Ralif Khan lodged FIR on behalf of State alleging therein that on 01.01.2017, he alongwith his subordinate staff left police station for patrolling and during patrolling when reached at Jhaloo bridge, they heard firing from Rameja Pul and rushed towards there where on light of vehicle, they saw so many persons gathered there and one person, namely, Muhammad Ramzan Utero informed to complainant party that when he alongwith his family members was present in his house suddenly at about 200 hours, 18 armed persons entered into his house and out of them he identified 13 accused persons on the electric light, namely, Kashmir Jatoi, 2. Islam Jatoi, 3. Muneer Jatoi, 4. Jabbar Jatoi, 5. Saindino Narejo, 6. Pathan Narejo, 7. Hyder alias Haidroo Phulpoto, 8. Raheem Bux alias Rahmoo Phulpoto, 9. Asif Phulpoto, 10. Iqbal alias Iqoo Narejo, 11. Sadam Phulpoto, 12. Mujahid Phulpoto and 13. Liaquat Jaffery with five unknown accomplices, who on the show of weapons overpowered upon the complainant party and forcibly took away five buffaloes from his house, whereupon they raised cries and accused persons in order to create panic and terror, made aerial firing and went away. Thereafter, complainant party together with villagers chased the accused persons and after crossing protective bund when they reached at Chak, they saw on the light of torches 18 persons armed with latest weapons while taking away the buffaloes and villager Muhammad Ramzan identified them to be same accused persons and it was 2040 hours, when police party directed them to surrender themselves, but accused persons started straight firing upon the police party with intention to kill them and in retaliation, police party after taking position also made firing in self defence and during encounter complainant informed to SSP, Khairpur who directed them to follow the accused persons and other police force will be sent soon for help and in the meantime, ASP City Muhammad Imran Mirza alongwith other officials of police also reached there, who also participated in the encounter which remained continued for 45 minutes, however, accused persons leaving the buffaloes made their escape good by taking the advantage of darkness and thereafter police party found one villager namely Muhammad Saleem Junejo who came with police party and other villagers in chasing of accused persons, was lying dead due to firearm injuries. After completing all legal formalities at the spot, complainant referred dead body of deceased to RHC Garhi Mori for postmortem and then police party tracked footprints of accused whole night and then came back at P.S and consequently lodged above FIR.
3. Learned counsel for applicant mainly contended that applicant is innocent and has falsely been inducted in this case due to enmity with police. He further contended that neither name of applicant nor his features or descriptions are mentioned in the FIR, however, subsequently his name was disclosed by complainant in his further statement and PWs in their statements. He further contended that applicant was not present at the place of incident but alleged to have abetted the offence for which no material is available with the prosecution. He further submitted that in fact applicant alongwith his brother Imdad Phulpoto and cousin were taken away by police from his house and were illegally detained at various places as the brother of applicant Imdad Ali is station head of ‘SAMAA TV’ at Sukkur and such news were aired in electronic and print media, however, said brother of applicant was recovered from the lockup of P.S.Shah Hussain in injured condition and thereafter he filed Crl. Misc. Application before the court of learned Sessions Judge, Khairpur for registration of FIR against police officials, Khairpur, as such police party became annoyed with applicant party and falsely involved present applicant by managing concocted story. He further contended that applicant is Auditor in Accountant General Sindh Office and being respectable citizen he cannot dare to even think to commit an offence of heinous nature. Lastly, he prayed for grant of bail to the applicant as the case of applicant falls within the purview of sub-section (2) of section 497 CrPC.
4. Learned Additional P.G for the State straightaway recorded his no objection for the grant of bail on the ground that there is no material against the applicant connecting him with the commission of alleged offence.
5. We have heard the learned counsel for the applicant and learned Additional P.G for the State and have minutely examined the material available on record. Admittedly, neither the name of applicant nor his features or descriptions are mentioned in the FIR, but later on, his name was disclosed by complainant in his further statement so also by PWs in their statements under section 161 CrPC, albeit, without disclosing the source of information. To show animosity of the police with the applicant party, learned counsel for applicant has placed on record Photostat copies of memo of Crl. Misc. Application filed by Imdadullah, the brother of applicant, who is reported to be station head of SAMAA TV at Sukkur before learned Sessions Judge/Justice of Peace, Khairpur under section 22-A & 22-B CrPC for registration of FIR against proposed accused, who are shown to be police officials for his illegal confinement by the police. Besides, per prosecution case, the I.O collected CDR which shows the communication of present applicant with the co-accused persons before incident and soon after the present crime, such allegation falls within the purview of abetment, which is not supported by the ocular account of evidence of PWs, as such it is to be adjudicated upon by the trial court at the time of trial. The applicant is reported to be Auditor in Accountant General Sindh Office and is behind bar since his arrest. Therefore, for above reasons coupled with no objection recorded by learned Additional P.G, prima facie case of applicant/accused requires further enquiry as contemplated under sub-section (2) of section 497 CrPC entitling him to be released on bail. Resultantly, by our short order dated 12.04.2017, bail was granted to applicant/accused Ghulam Mustafa Phulpoto subject to his furnishing solvent surety in the sum of Rs.200,000/-(Two Lac) with PR bond in the like amount to the satisfaction of the trial court. These are the reasons in support of our short order dated 12.04.2017.
6. Observations made hereinabove are tentative in nature. The trial court shall not be influenced by such observations while deciding the case on merits.
JUDGE
JUDGE
Ahmad