2010 PLP 927 (MLD)

MRS. QAISER IQBAL, J.

The applicant seeks post-arrest bail in Crime No.238 of 2008, under sections 392, 353, 324, 34, P.P.C. of Police Station Steel Town, Karachi. His bail plea was declined by the learned IInd Additional District and Sessions Judge, Malir. He has resorted to file the instant application. Succinctly the facts leading to the case are that one Muhammad Ashraf lodged a report at 0100 hours on 2-9-2008 alleging that he along with his brother Muhammad Ali and cousin Muhammad Ibrahim were proceeding to Gulshan-e-Hadeed, Phase-I, on foot on Katcha way at about 1045 hours, three unidentified persons suddenly came on foot, one of them was duly armed snatched Registration Book of his Motorcycle, cash of Rs.250 and from his brother Muhammad Ali and cousin Muhammad Ibrahim, the culprits snatched cash and ran away towards National Highway. In the meanwhile, a police mobile reached on the spot, incident was disclosed. Police chased the accused persons, found four persons going towards the National Highway who were signalled to stop, as a consequence thereto firing was exchanged from both sides. Police arrested applicant and Nadir Hussain on the spot along with pistol. After usual investigation the applicant along with co-accused were challaned in the learned trial Court. Learned counsel for the applicant has contended that prima facie no evidence is available to connote that encounter had taken place between the applicant and his accomplices and the police, nor substantial evidence is available to suggest that the occurrence as depicted in the F.I.R. had taken place. It is further pointed out that no one in the encounter was injured nor any empty was secured from the place of incident, to prove the factum of firing from both sides. It is next urged that from the side of police party, only A.S.-I. Deedar Ali has been shown to be present on the spot, elements of presence of mobile and/or police party cannot be conveniently presumed to be correct. It is next urged that original Registration Book in the name of Wahid Bux of Sukkur is not available on police record. Learned counsel for the applicant has also invited my attention to the fact that the incident had taken place at 10-45 hours and the report was lodged at 0100 hours, applicant was arrested at 12-05 a.m., no explanation has been furnished for delay of one hour and 20 minutes, which simply connotes a serious doubt in the alleged incident as deposed in the F.I.R. When confronted with the above, learned Additional Prosecutor General, Sindh has conceded that no one was injured in the incident nor empty was secured from the place of incident, however, he has seriously contended that the applicant is involved in the commission of crime of a robbery. I have considered the arguments advanced by the learned counsel for the parties at bar and perused the material available on record. In absence of any injury sustained by both sides in the encounter, non-availability of empties, coupled with delay shown between the time of occurrence and the time of arrest of the applicant, the case against the applicant falls within the purview of further enquiry prima facie the offences committed under sections 353 and 324, P.P.C. are not spelled out from the facts and circumstances of the case. In support of the above contention, reliance has been placed upon the cases of Rab Nawaz v. The State (1990 SCMR 1085) and Khawand Dino alias Dadoo v. The State 2003 YLR

918. For the foregoing reasons, I am of considered view that the applicant is entitled to the concession of bail. The applicant is admitted to bail subject to his furnishing surety in the sum of Rs.1,00,000 and PR Bond in the like amount to the satisfaction of the learned trial Court. Criminal Bail Application No.99 of 2009 stands disposed of accordingly. H.B.T./A-31/K Bail granted.