2001 PLP 648 (YLR)

The present applicant is seeking bail in Crime No. 57 of 1998 under sections 324, 353, 148, 149, P.P.C registered with Police Station Lakhi Ghulam Shah. Brief facts of the prosecution case as per F.I.R. are that on 22-7-1998 at about 07-15 hours, A.S.-I. Fazalullah Bijarani of Police Station New Foujdari. Shikarpur lodged his report at Police Station Lakhi Ghulam Shah stating therein that today he alongwith his subordinate staff namely P.C. Ghulam Muhammad, P.C. Roshan Ali P.C. Miral Afzal, P.C. Abdul Haq, P.C. Ali Bahadur, P.C. Mukhtiar Ahmed, P.C. Ali Gul and the staff of Police Station Staurt Ganj, consisted upon A.S.-I. Shakeel Ahmed Soomro, P.C. Nazir Ahmed, P.C. Hakim, P.C. Hakim Ali, P.C. Faiz Muhammad, P.C. Fiaz Ali, P.C. Muhammad Shafique, P.C. Ghulam Hussain, P.C. Wahid Bux, P.C. Abdul Raheem, P.C. Ali Bux, duly armed with dressed on Government vehicle bearing No. 4862 driven by driver P.C. Nadir Hussain under Roznamcha Entry N0. 45 of Police Station New Foujdari, Shikarpur left their police station for investigation of Crime No.92 of 1998 offence under sections 337-A (mi), 337-F(i) 114, 147, 148 and 149, P.P.C. of Police Station New Foujdari, Shikarpur. During investigation they reached at Police Station Lakhi Ghulam Shah, from where they picked H.C. Moula Bux, P.C. Mubarak Ali, P.C. Nazir Ahmad, P.C. Qamaruddin, P.C. Muhamad Aslam, and P.C. Manzoor Ahmed, P.C. Momin Khan, duly dressed and armed in their help of Government vehicle bearing No.S.P-4803 driven by driver H.C. Bashir Ahmed and left police station under Roznamcha Entry No.49 at about 05-30 hours, for investigation of said offence. When at about 06-00 hours they reached at Sim Minor Bridge near Railway Crossing Habib Kot on link road leading from main road Sukkur-Shikarpur towards Habib Kot they saw that the required accused of Crime No. 82 of 1998 namely Gulzar, Shahoo alias Nazir both sons of Soomar Musto alias Baggo all by caste Shar, resident of village Arbab Shar, Taluka I.akhi Ghulam Shah and three unidentified accused out of which accused Gulzar Shahoo alias Nazir Musto and two unidentified accused were armed with guns and one unidentified accused was armed with cartridge pistol coming on road from southern side and reached on road. He got stopped his vehicle, alighted from vehicle and asked the accused to stop on which accused startedfiring upon them with an intention to commit their Qatli-i-Amd, and they also fired shots from their official weapons in their defence on which one unidentified accused who was armed with pistol while raising cry fell down, and remaining five accused while taking benefit of houses towards northern side made their escape good. They then arrested the injured accused alongwith pistol. He secured pistol from right hand of accused, opened it and found it loaded, hence he unloaded the pistol and took out one live cartridge of red colour .12 bore lying in it. He enquired about name etc. from the accused on which accused disclosed name to be Manzoor son of Ali Gohar, resident of village Taib near Ratodero, District Larkana. He saw that accused has received injuries on his right shoulder. He look the personal search of accused and secured three live cartridges of .12 bore red colour from right side pocket of his shirt. He enquired about licence of secured pistol from accused on which accused disclosed that the pistol and cartridges are unlicensed. He then arrested the accused for committing offence punishable under sections 324, 353, 149, P.P.C. read with section 13 D.A.O. and prepared such Mashirnama of arrest of accused, recovery of pistol and cartridge while citing A.S.-I., Shakeel Ahmed Soomro and H.C. Moula Bux as Mashirs and obtained their signatures on it. They then brought the accused alongwith secured property at Police Station where he lodged his report. He further stated that the accused used criminal force to deter them from performing their lawful duty and so also fired shot from their weapons upon them with an intention to commit their Qatl-i Amd. They have also seen very well to the unidentified accused and if they appear again before them they will identify them. He fired 5 shots from his S.M.G rifle while other staff will give the detail of shots fired by them from their official weapons in their statement. Learned counsel for the applicant has contended that it is- a cause If ineffective firing as there was encounter between the accused and police party. No one has sustained injuries from the side of police and it cannot be said at this stage that the present applicant is accused and had injured the police party. He has placed reliance in support of his contention reported in 1990 SCMR 1085. He has further contended that as far as the abscondence of the present applicant is concerned the proceedings under sections 87 and 88, Cr.P.C. have not been initialed by the trial Court and the same is not controverted by Mr. Memon, Advocate for Additional Advocate-General and in this regard he has placed reliance on 1994 PCr.LJ 1335, 1989 SCMR 1987 wherein the Honourable Supreme Court has held that since the proceedings under sections 87 and 88, Cr.P.C. have not been initiated against the accused who cannot be declared as absconder. Mr. Noor Muhammad has further placed reliance on 1985'SCMR 382 wherein the Honourable Supreme Court has granted bail to the accused when co-accused has been granted bail by the trial Court and the long abscondence of accused has become irrelevant in matter of bail. In the present case the co-accused has been granted bail by this Court the then Mr. Justice Abdul Ghani Shaikh by order, dated 28-2-2000. On the other hand Mr. Muhammad Iqbal Memon, Advocate for Additional Advocate-General for the State has contended that one accused Nazir was apprehended at the spot in injured condition and no one has sustained injury from the side of police. He has further submitted that the applicant has remained absconder and has placed reliance on 1994 SCMR 999, 1999 PCr.LJ 616 and 1994 P Cr. LJ

719. I have considered the arguments rendered by the learned counsel for the parties and have gone through the material available on the record. Admittedly the encounter was going on between the police party and the accused party and yet none has sustained injury from the side of police and it is the case of the prosecution that co-accused Nazir sustained injury and was arrested. If Nazir has been arrested in injured condition it cannot be said that the present applicant has also participated in the offence and his participation in the alleged offence is yet to be established at the time of the trial. As far as the abscondence of the accused is concerned admittedly co -accused Musto has been granted bail by Mr. Abdul Ghani Shaikh, J. (as then he was) and the abscondence of the present applicant becomes irrelevant when co-accused has been granted bail by this Court and I am being fortified by a case of Ibrahim v. Hayat Gul and others reported in 1985 SCMR 382 wherein the Honourable Supreme Court has held that co-accused granted bail. Long abscondence of accused when irrelevant in matter of bail and the accused who was absconder was granted by the Honourable Supreme Court. It has been noted by me that it has been admitted by learned counsel for the State that no proceedings under sections 87 and 88, Cr.P.C. have been initiated by the trial. Court and in that event I am being fortified by the law reported in 1989 SCMR 1987, 1994 PCr.LJ 1335 wherein the Honourable Supreme Court and this Court have held that since no proceedings under sections 87 and 88, Cr.P.C. have been initiated, the accused cannot be called as absconder. Moreover, Police have not taken steps to arrest the present applicant and there is nothing to suggest from the record that police have taken efforts to apprehend the applicant and who was available at the address mentioned in his bail application and in that event it cannot be said that the present applicant had absconded intentionally and I am being fortified by a case of Muhammad Sulleman v. Nasib-ub-Din and others reported in 1985 SCMR 1709 wherein the Honourable Supreme Court had dismissed the cancellation of bail application of complainant party who were seeking cancellation on the ground of abscondence of the accused. Accused despite being available not arrested by the police

Fact that police was not keen to arrest accused supported by abductee and complainant in their statement on oath before trial Court

Accused, held, had not intentionally absconded in circumstances-- Cancellation of bail declined. In the present case no efforts have been taken by the police nor proceedings under sections 87 and 88., Cr.P.C. have been initiated by the trial Court, therefore, it cannot be said that the present applicant is absconder. Besides no specific role has been ascribed to the present applicant. The starting point is that firing was going on and no policeman has been injured at the hands of the accused and at the moment the present applicant has been able to make out a prima facie good case for grant of bail particularly when co-accused Musto has been granted bail by this Court in result the present applicant is granted bail in sum of Rs. one lac and P.R. Bond in the like amount to the satisfaction of trial Court. H.B.T./G-47/K Bail granted.