IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Criminal Bail Application No. D- 49 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. 09/2021 in Spl. Case No. 05/2021 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 Yakoob through instant criminal bail application seeks post-arrest bail in Crime/FIR No. 10 of 2021, registered under sections 302, 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 0700 hours, proclaimed offender Habibullah Oghai and absconding accused Raham Dil Bheri along with 14 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 with intention to commit their murder and thereby caused the death of police constable Abdul Rahman Waseer, 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 therefore, he is vicariously liable for the murder of P.C. Abdul Rahman Waseer, 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 sixteen accused and police within the territorial jurisdiction of P.S Katcho Bindi-II, District Ghotki. Out of sixteen, thirteen accused are nominated in the FIR by names, while three 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. As per FIR, the deceased P.C. Abdul Rahman Waseer died due to fire shot on his forehead made by the co-accused Rehman Oghai. It is also an admitted position that there is no previous criminal record of the applicant suggesting that he was ever involved in any criminal case. 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