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