ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

Cr.Bail Application No.D- 28 of 2010

DATE ORDER WITH SIGNATURE OF JUDGE

For hearing.

16.09.2010

Mr. Ishrat Ali Lohar, Advocate for applicant.

Syed Meeral Shah, D.P.G for the State.

Applicant Manzoor Ali Umrani seeks bail in Crime No.63 of 2008 of P.S Piyaro Lund for offence U/Ss: 302, 324, 353, 147, 148, 149 PPC r/w Section 6/7 of Anti Terrorism Act, 1997.

On 12.11.2008 SIP Lutuf Ali Leghari SHO PS Piyaro Lund lodged the report on behalf of the State which reads as under:-

“On 11.11.2008 I alongwith staff one ASI Muhammad Khan Panhwar, PC-Muhammad Sharif, PC Ali Akbar and Driver Muhammad Ismail, in Government Vehicle P-7 vide D.D entry No.15 at about 21oo hours, proceeded for patrolling and came at police check post Hakra Mori at about 2330 hours, where PC Dil Murad, PC Muhammad Sharif were present, where we stopped and received information through Mobile phone that five persons robbed a van from bypass road Tando Allahyar and they are boarded in black colour cultus car, proceeded towards Piyaro Lund on receiving information. We started checking at Police check post where search lights were already on, at 0040 dated 12.11.2008, one black colour cultus car No.ANK-297, reached from Tando Allahyar side at police check post, for which information already has been received by us that accused persons after robbing have escaped away in same to which we signaled to stop and we saw through light, five persons were sitting, all of sudden they reversed/back the vehicle and started firing upon police party where all the police personnel laid down, and made defence firing meanwhile PC-Dilmurad received fire arm injury, thereafter all accused went away while reversing the car, PC Dilmurad received two bullet injuries on his abdomen and blood was oozing, where we tried to take the injured in vehicle but he succumbed to injuries and died away. Thereafter, dead body of police constable was sent to Civil Hospital Tando Allahyar through ASI Muhammad Khan Panhwar for postmortem and informed the higher authorities through wireless. We followed the accused at different places and held a Nakabandi till morning but failed to search out the accused and thereafter reached at Police Station where five unknown persons who were identified through torch light, after seeing them will be identified by us. They have deterred in our lawful duty and with intention to spread terror and made straight firing upon us, resultantly PC Dilmurad s/o Muhammad Ibrahim Khaskheli aged about 25 years was martyred therefore, on behalf of the State, the present FIR is registered against the accused persons.”

The applicant approached the trial Court for bail but his bail plea was turned down by the trial Court vide order dated 30.7.2010.

It is inter alia contended that applicant is innocent and has been falsely implicated; prosecution story appears to be doubtful; initially a case under Crime No.262/2008 was registered at P.S Tando Allahyar for offence U/s 17 (3) H.O offence against property (Enforcement of Hudood) Ordinance, 1979 and the applicant was challaned in that case on the basis of statement of co-accused Nabi Bux; per learned counsel another case bearing Crime No.263/2008 U/s 324, 353 PPC was also registered by same ASI at same Police Station in which the applicant was arrested and a separate case under Arms Ordinance was also registered against him; the applicant is Government employee and serving at C.M.H Hyderabad but he has been implicated on the statement of co-accused Nabi Bux in earlier FIR; per learned counsel no specific role is attributed to the present applicant and during investigation I.O could not collect any material against the accused connecting him in commission of crime. It is urged with vehemence that it is not alleged that as to who fired upon the deceased PC Dilmurad and who caused fatal injury to him as five persons have been nominated therefore, the case of applicant requires further inquiry. Per learned counsel, the applicant has been involved in the present case on account of enmity otherwise he is innocent and has nothing to do with the alleged offence. Per learned counsel, no identification parade was held therefore, he could not be involved in the above offence. It is lastly contended that applicant has been granted bail in all cases except the case in hand therefore, in this case also he deserves the same concession as he is behind the bars for two years and case is not concluded as yet.

Conversely, learned D.P.G for the State opposed the bail application on the ground that accused is involved in number of cases therefore, he does not deserve the concession of bail.

Upon perusal of record, it appears that alleged incident took place on 12.11.2008 at 0040 hours and FIR was lodged on the same date at 1530 hours without any delay. Admittedly, the FIR was lodged against the unknown persons. Applicant was arrested on 12.11.2008 and his identification parade was arranged on 17.11.2008 whereby he was identified by ASI Muhammad Khan Panhwar, PC Muhammad Sharif and PC Ali Akbar. There is recovery of 30 bore pistol from the applicant. Though it is contended that the applicant has been implicated in this case due to enmity with police but learned counsel for the applicant did not place on record any document in support of his contention. As far as the contention of learned counsel for applicant that there is general allegation and no specific role is attributed to the applicant is concerned, such contention merits no consideration at this stage and is untenable. In the cases reported as Haji Gulu Khan Vs. Gul Daraz Khan and another (1995 SCMR 1765), Shahzaman and 2 others Vs. The State and another (PLD 1994 SC 65) and Abdul Malik Vs. The State (2000 P.Cr.L.J 1816) in which it has been held by their lordships that at the bail stage it is immaterial as to whose fire proved fatal.

For the foregoing reasons, we are of the considered view that a prima facie case exists against the present applicant and prosecution has collected sufficient material in shape of identification parade as well as the recovery of weapon therefore, he is not entitled to the concession of bail. Moreover, learned counsel for applicant has not placed on record any document to show that prosecution is responsible for delay in concluding the trial. In view of the above, I do not find any merit in bail application which is accordingly dismissed. However, trial Court is directed to conclude the trial within three months and for procuring the attendance of P.Ws may take coercive efforts if needed.

The observations made hereinabove are tentative in nature and will not prejudice the case of either party.

JUDGE

Tufail