ORDER SHEET

HIGH COURT OF SINDH CIRCUIT COURT HYDERABAD.

Present

1. Mr. Justice Amir Hani Muslim.

2. Mr. Justice Irfan Saadat Khan.

CR. B.A.NO.D-48 OF 2010.

Muhammad Rafique Gahelo. . . . . .Applicant.

Versus.

The State. . . . . . . .Respondent.

Applicant: Through Mr. Ayaz Latif Palijo, Advocate.

Respondent the State: Through Mr. Shahid Ahmed Shaikh, Assistant Prosecutor General, Sindh.

Date of hearing: 02.12.2010.

Date of order: 02.12.2010.

O R D E R..

IRFAN SAADAT KHAN,J.- Through this application, the applicant seeks bail in Crime No.58 of 2010 of Police Station Kot Ghulam Muhammad, under sections 399, 402, 324, 353 PPC r/w sections 6/7 of the Anti-Terrorism Act, 1997 (the Act).

2. The applicant approached the trial Court but his bail plea was turned down vide order dated 7.8.2010.

3. Briefly stated the facts of the case are that on 8.4.2010 complainant SIP Ghulam Mustafa Leghari, got spy information at about 02.35 hours that some unknown persons are available at Sim Nala Mori situated at Mirpurkhas-Kot Ghulam Muhammad Road, duly armed with weapons with the intention to commit some heinous crime. The complainant alongwith his staff left police station in a government vehicle vide departure entry No.24 at 02.45 hours and proceeded towards the pointed place. Spy information was also communicated to D.P.O Mirpurkhas and SPO Digri through wireless. The police party thereafter reached the pointed place at about 03.00 hours and saw in the light of the vehicle that on southern side of the road one truck was parked, in which, one person was sitting on the steering seat and four armed persons were standing nearby the truck, while on the northern side of the road they saw five armed persons.

4. Police party stopped the vehicle and got down from it and informed the culprits about their identity and ordered them to surrender themselves with weapons. However, the accused persons started firing upon the police officials. The police in return also started firing upon the accused persons in their defence. After sometime SPO Digri Fazal-e-Haq alongwith police staff also reached at the spot and joined the encounter. The encounter continued for about half an hour, whereafter, the accused persons surrendered themselves, however, three armed persons made their escape good towards the jungle while seven persons who surrendered were apprehended by the police with weapons.

5. On inquiry by the police, the accused persons disclosed their names as Malook S/o Bux Ali, from whose possession police recovered one klashnikov without number, in which three bullets were loaded. The second person disclosed his name as Muhammad Rafique S/o Muhammad Usman, from whose possession a repeater was recovered, which was loaded with one cartridge. The third person disclosed his name as Khalid @ Ludhro S/o Abdul Karim, from whose possession police recovered one SBBL gun loaded with one cartridge. The fourth person disclosed his name as Mushtaq S/o Mataro, from whose possession one TT Pistol loaded with one bullet was recovered. The fifth person disclosed his name as Muhammad Saleh S/o Mangal, from whose possession one 30-Bore Pistol loaded with two rounds was recovered. The sixth person disclosed his name as Muhammad Qasim S/o Tharo Khan, from whose possession one 30-Bore Pistol loaded with two rounds was recovered. Seventh person who was sitting on the steering seat of the truck disclosed his name as Muhammad Hussain S/o Hakeemuddin. On making enquiry from those persons they disclosed the name of the absconding accused as Sajjad S/o Abdul Majeed, Jumma S/o Soomar and Haji Zareef. Thereafter the weapons secured from the accused persons were sealed. On physical search of the accused persons police recovered one currency note of Rs.500/- from Malook and three mobile phones of NOKIA Company from Muhammad Rafique, Muhammad Hussain and Shahbaz @ Mushtaq, respectively.

6. Police also searched the place of occurrence from where it recovered empties of pistols and klashnikov. The police thereafter secured the truck bearing No.LS-5992 and found that on the body of the truck names of Yousif and Murtaza were written. No registration document of the truck were available. On interrogation the accused persons disclosed that their weapons were without license. Mashirnama of arrest and recovery was prepared at the spot in the light of the vehicle and due to the non-availability of private persons ASI Faiz Alam and HC Allah Dino were made mashirs. The arrested persons alongwith the case property were brought to police station Kot Ghulam Muhammad, where F.I.R. was registered.

7. It is inter alia, contended by the learned counsel for applicant Muhammad Rafique Gahelo that the trial of case by the Anti-Terrorism Court is without jurisdiction, as the offences if any, committed by the accused persons does not fall within the ambit of sections 6 and 7 of the Act. The learned counsel further submitted that the applicant had old enmity with the police and that is why the police had implicated him falsely in the present case, whereas he has nothing to do with the abovementioned crime and the applicant is innocent person with no criminal record.

8. The learned counsel for the applicant contended that the firing took place for about half an hour but no person was injured from either side, which clearly suggests that no such incident ever took place and the prosecution story appears to be doubtful.

9. The learned counsel further submitted that story narrated in the F.I.R. is concocted, fabricated and unbelievable. He next contended that the firing was ineffective and no damage or injury has been caused. As per the learned counsel the place where the firing took place for about half an hour is a densely populated area and it is strange on the part of the police that they could not obtain any private mashir to substantiate their averments.

10. The learned A.P.G. on the other hand, has opposed the grant of bail. When asked as to whether provisions of sections 6 and 7 of the A. T. Act are attracted to the case in hand. He frankly conceded that this is not a case of the ATC. The learned A.P.G. also conceded that the applicant had no criminal background. He also conceded to the fact that nobody was injured from either side nor any damage has been caused.

11. We have heard both the learned counsel at length and have perused the record. Admittedly, this is a case of ineffective firing, neither the complainant nor any official of police or of the accused person has received any injury. The prosecution story seems to be against normal human conduct so far as the applicability of sections 6/7 of the Act is concerned as it requires further probe as the ingredients of the aforesaid sections are missing in the case in hand. As per the learned counsel for the applicant there was an enmity and personal vendetta between the police and the applicant, which was not denied by the learned A.P.G.

12. For the foregoing reasons we are of the considered view that case of further enquiry is made out. The material against the applicant does not attract the provisions of sections 6 and 7 of the Anti-Terrorism Act. The applicant is therefore granted bail in the sum of Rs.50,000/- (Fifty Thousands) and P.R. Bond in the like amount to the satisfaction of the Additional Registrar of this Court.

13. Above are the reasons for our short order dated 02.12.2010, whereby we granted the bail application.

14. Before parting with the above order we would direct the learned Judge of Anti-Terrorism Court to review his order of taking cognizance of the matter and examine the matter and give finding whether act of accused falls within the mischief of sections 6 and 7 of the Anti-Terrorism Act, 1997, as requirements of such provisions are creating terror, panic or sense of insecurity amongst the public at large.

JUDGE