THE HIGH COURT OF SINDH, BENCH AT SUKKUR

ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Crl. Bail Application No. D- 10 of 2016.

DATE OF HEARING

ORDER WITH SIGNATURE OF JUDGE.

For hearing.

Present:

Mr. Justice Abdul Rasool Memon &

Mr. Justice Muhammad Humayon Khan.

Mr. Muhammad Tarique Maitlo advocate for applicant.

Mr. Saleem Akhtar Buriro, Additional P.G. for the State.

Date of hearing: 26.09.2016.

Date of order: 05.10.2016.

O R D E R

Muhammad Humayon Khan J., Applicant Ali Muhammad alias Allan seeks post arrest bail in crime No. 134/ 2013 registered with Police Station, Gambat, District Khairpur, for offences under Sections 396, 324, 353, 427, 148, 149 PPC read with Section 7 ATA, 1997, as his bail application was dismissed by the learned Judge, ATC, Khairpur vide Order dated 11.09.2015.

2. Briefly the facts of the prosecution case are that on 8.8.2013 at 0930 hours, complainant ASI Ghulam Sarwar lodged FIR at PS Gambat, District Khairpur, on behalf of the State alleging therein that on the said date while he was on patrol duty alongwith his subordinate staff reached at Bismillah police picket where P.Cs. Deedar Ali and Mubarak Ali were present and in the meantime, at 0030 hours, they saw on the light of vehicle 20/22 armed culprits who came on National Highway from northern side and started firing on the passenger bus in order to get it stopped, however, driver stopped the bus. On seeing this firing, complainant party rushed towards there and on the light of vehicle they identified present applicant Ali Muhammad and Parwaiz alongwith 14 others while four accused were unidentified and they all were armed with deadly weapons and within the presence of complainant party, accused overpowered upon the bus and got the bus driven towards Fish Pond of Mian Himath Ali Ujjan. Complainant party informed about their identity as police and directed the accused to surrender themselves, but accused persons made straight firing upon police with intention to commit their murder. Police party after informing to their high-ups also started firing in their defence and during firing SHO,P.S, Gambat and SHO, P.S.T.M.Khan alongwith their staff also reached there and accused persons while seeing police mobiles stopped the bus and tried to alight from the bus and during alighting one passenger of bus tried to caught hold one accused whereupon other accused persons made direct firing at said passenger, which hit him and said passenger after receiving injury raised cries and fell down on the ground. The encounter continued for about 20 minutes and thereafter all accused persons made their escape good towards southern side. The injured passenger disclosed his name as Mukhtiar Ahmed. In encounter, one police official namely Muhammad Bachal of P.S.T.M.Khan also received fire arm injury so also police mobile also caused damage due to firing made by accused persons. The injured passenger succumbed to the injuries in the hospital.

3. After registration of FIR, police carried out investigation and submitted challan against accused persons for their trial in absentia. However, subsequently supplementary challan was submitted against accused Ali Muhammad and Parwaiz alias Bajhi on 27.1.2015.

4. We have heard learned counsel for the parties and scanned the material available on record meticulously.

5. Learned counsel for the applicant mainly contended that applicant is innocent and has nothing to do with the alleged offence. He further argued that all the PWs are police officials and not a single passenger of bus has been cited as witness or mashir of the alleged incident. He further contended that as per FIR and 161 Cr. P.C. statements of the PWs, no overt act has been assigned to the applicant for committing the alleged offence and according to police, they identified two accused persons including applicant during odd hours of night on the light of vehicle, which is a weakest type of evidence, as such it creates doubt. He also contended that neither alleged bus has been recovered nor said bus has been shown as case property. Lastly, learned counsel contended that case of applicant requires further enquiry, as contemplated under section 497(2) Cr. P.C., as such he is entitled to concession of bail. In support of his contentions, learned counsel relied upon cases of Muir Ahmad v. The State and another ( 2014 S C M R 1669), Mumtaz Hussain and 5 others v. The State (1996 S C M R 1125), Allah Ditto and another v. The State (2011 P Cr. L J (Karachi) 485), Abdul Hameed v. The state (2011 Y L R (Karachi) 1156), and Muhammad Ibrahim Tonio v. The State (2012 Y L R (Sindh) 1391).

6. Learned Additional P.G. strongly opposed the bail plea of the applicant on the ground that name of applicant transpires in the FIR that he being armed with deadly weapon alongwith his companions attacked upon a passenger bus by making firing in order to get it stopped and on resistance, they committed murder of one passenger of bus so also in encounter with police, accused caused fire arm injuries to one police officials and also caused damage to the police mobile, as such present applicant does not deserve any concession of bail. He finally contended that this act comes within the connotation of “act of terrorism” and therefore his bail application was rightly rejected by the Trial Court.

7. Admittedly, this is a case of robbery at main National Highway allegedly committed by the accused, during which the present applicant alongwith co-accused made straight firing upon a passenger bus in order to get it stopped and drove the said bus towards Fish Pond of Mian Mimath Ujjan, where on resistance of one of the passengers, namely, Mukhtiar Ahmed, accused persons committed his murder by causing him fire arm injuries. Moreover, present applicant alongwith other accused also deterred the police from performing their lawful duties and made straight firing upon them with intention to commit their murder and such encounter remained continued for 20-minutes; during which, accused persons also caused fire arm injuries to P.C Muhammad Bachal so also caused damage to police mobile. All the PWs in their statements recorded under Section 161 Cr. P.C. have fully implicated the present applicant in the commission of alleged offence. No animosity has been shown by the applicant against the police for his false implication in this heinous offence, which is against the society creating sense of insecurity in the prudent mind. Prima facie, sufficient material is available on record connecting the applicant with the commission of alleged offence, which falls within prohibitory clause of Section 497 Cr. P.C. It is pertinent to mention here that the name of the present accused is specifically nominated in the FIR.

8. We have carefully gone through the case-laws relied upon by the learned counsel for the applicant, which are on different facts and circumstances and in all the said cases, it was held that the matter requires further inquiry and therefore bail was granted and hence none of the case-law is applicable to the facts and circumstances of instant matter.

9. It is a well settled principle that while deciding any criminal matter, its own facts should be taken into consideration and no hard or fast rule of universal application can be invoked to decide any particular case.

10. In our humble view, if the act of the accused is dreadful, horrible for fearful and it creates panic or alarm for an individual, society or public-at-large, then it can be termed or construed as “terrorism”. Accordingly, the manner in which the offense is alleged to have been committed, leaves no room for doubt that the accused persons are hardened, dispirit and dangerous criminals and their act amounts to “terrorism”. Reliance can be placed upon the case of Dhanibux Vs. The State (1999 MLD (Karachi) 2028).

11. It is well settled that in cases not falling within the prohibitory clause of section 497, Cr.P.C., the accused could not claim the bail as a matter of right and the court can decline the concession of bail if there exists a recognized exceptional circumstances. In the case of Imtiaz Ahmed and another vs. The State reported in PLD 1997 SC 545, the Honourable Supreme Court has held that:-

"6. Adverting to the above ﬁrst reason, namely, that all the offences except the offence under section 5(2) of Act of 1947 are bailable and since the latter offence does not fall under prohibitory clause under section 497, Cr.P.C. the two courts below erred in declining bail to the petitioners, it may be observed that by now it is a well settled proposition of law that even in respect of offences not falling under prohibitory clause of section 497, Cr.P.C., the Courts may decline to admit an accused to bail if there exist a recognized exceptional circumstances."

12. Keeping in view the above stated facts and circumstances of the case and the settled principle of law that at bail stage deeper appreciation of evidence is not permissible, applicant has failed to make out a case of further enquiry. Accordingly, the bail application of applicant Ali Muhammad alias Allan stands dismissed.

13. The observations made hereinabove are of tentative nature and the trial court shall not be influenced thereby in any manner at the time of final decision of the case and shall be free to conclude and arrive at its own findings after evidence is recorded in the case.

JUDGE