ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

Cr. Bail Appl. No.S-83 of 2013.

DATE ORDER WITH SIGNATURE OF JUDGE

Present:-

Justice Nadeem Akhtar

Justice Shahnawaz Tariq

Mr. Ayaz Hussain Tunio Advocate for the Applicant.

Mr.Shahid Ahmed Shaikh Assistant P.G.

Date of hearing 15.01.2014.

============

SHAHNAWAZ TARIQ - J:- Through instant application u/s 497 Cr.P.C, the applicant/accused Mujahid Ali Khowaja seeks post arrest bail in crime No.77/2013 of P.S. Badin u/s 365-A, 324, 353, 341, 34 PPC after rejection of his bail application by the learned Anti- Terrorism Court vide order dated: 16.08.2013.

2. Relevant facts narrated in the prosecution case are that on 28.04.2013, at 0010 hours, the complainant SIP Muhammad Ameen Qureshi, SHO P.S. Badin, alongwith his subordinate staff, after receiving information that co-accused Abdul Malik Ogahi and his companions were coming from Roopa Mari road alongwith abductee Dr. Mohan Lal, left P.S and reached at Seerani and started checking. At 0200 hours, one car Suzuki Khyber came there, which they signaled to stop, however, four accused persons boarded in the said car got down and made straight firing upon the police party with intention to kill them. Three accused persons made their escape good and fled away towards jungle, however, the complainant party apprehended one person armed with Kalashankov at 0315 hours, and recovered from his possession one Kalashankov loaded with ten bullets. Out of three culprits, one person was identified by HC Sikander Ali and HC Mukhtiar Ahmed as Mujahid s/o Ramzan(applicant). On checking the car, complainant recovered abductee Dr. Mohan Lal who disclosed that he was kidnapped on 02.04.2013 from Makhdoom Stop while coming to his house from Matli. Apprehended person disclosed his name as Abdul Malik Ogahi, from his personal search the complainant recovered one Q mobile and cash of Rs.400/-. He further disclosed the names of absconding accused as Ali Bux alias Alan, Mujahid Khuwaja and Mashoouqe Ali Jamali. The complainant party took the accused, recovered property and abductee to P.S and lodged FIR.

3. Learned counsel for the applicant has contended that applicant is innocent and has falsely been implicated in the present case. The FIR is delayed by three hours without any plausible explanation. The abductee in his statement u/s 164 Cr.P.C did not implicate the applicant in commission of offence. There was encounter between the police and the accused party for a long time and empties were also recovered from the spot. The applicant has been implicated by the co-accused in his statement which is not admissible under Article 38 of Qanoon-e-Shahadat Order, 1984. Learned counsel further contended that the alleged identification of the applicant by the P.Ws HC Sikander and Mukhtiar in dark night is highly doubtful and requires further probe. Learned counsel contended that section 324 PPC is not attracted in the present case. The applicant is a senior advocate and has been falsely implicated due to political rivalry. He prayed for grant of bail to the applicant.

4. Learned Assistant P.G strongly opposed the bail application on the ground that the applicant was not only duly identified by the P.Ws HC Sikander and PC Mukhtiar but also was named by the co-accused who was apprehended at the spot. He further contended that the P.Ws in their statements under section 161 Cr.P.C have supported the contents of the FIR, therefore, applicant is not entitled for concession of bail.

5. We have heard the arguments advanced by the learned counsel for the applicant, learned APG and scanned the available record with their possible assistance.

6. It has transpired that during the first round, the bail application of applicant was declined by the trial Court and he approached this court by filing Cr. Bail application No.D-66/2013, which was disposed of by this Court vide order dated: 07.08.2013, and the trial AT Court was directed to decide same bail application afresh after hearing the parties and to consider the grounds raised by the applicant through his counsel. Consequently, the applicant argued his bail application, but the learned trial Court again declined his bail application vide order dated: 16.8.2013.

7. Perusal of record reveals that the complainant SIP Muhammad Amin received information regarding the shifting of the abductee at 0010 hours and police held nakabandi at Seerani, where at 0200 hours, police stopped the car bearing No. 7285, and there was an encounter between the police party and four culprits boarded in said car, but both parties neither sustained fire arm injury nor were the said car as well as police mobiles hit by any bullet. However, after encounter, the police secured of 4 empties of Kalashankov , 7 empties of 30 bore pistol, 4 empties of 12 bore cartridges, 9 empties of 9 mm pistol and 24 empties of SMG from the spot. According to prosecution, Police succeeded to apprehend one culprit namely Abdul Malik Ogahi on the spot who was armed with Kalashankov, while remaining three culprits managed to escape toward the forest. The apprehended accused disclosed names of his three companions including the present applicant. Admittedly, the applicant was not apprehended on the spot and even the seized car is not belonging to the applicant. The statement of the abductee namely Dr. Mohan Lal was recorded under section 164 Cr.P.C by the Civil Judge & Judicial Magistrate, Badin on 14.5.2013, but he did not implicate the applicant for the alleged offence. More over, the abductee namely Dr. Mohan Lal was abducted on 02.04.2013, but no such FIR was lodged with concerned police regarding said offence and even after the recovery of abductee on 28.4.2013 the situation remained same. Further, no recovery was made from the applicant/accused.

8. The main iota of evidence collected by the prosecution that applicant was identified by the P.Ws HC Sikander and PC Mukhtiar in the light of torch as well as the disclosure of the name of applicant by the co-accused requires serious consideration.

9. In view of what has been discussed above, we are of the view that case of the applicant falls under the ambit of further inquiry, entitling him to be enlarged on bail. Accordingly, by accepting this application , we direct that the applicant be released on bail, subject to furnishing solvent surety in the sum of Rs. 2,00,000/- (Rupees two hundred thousands only) and P.R. bond in the like amount to the satisfaction of the trial Court.

Judge