2013 PLP 998 (YLR)

NAIMATULLAH PHULPOTO, J.

Applicant/accused Farooq Ahmed seeks bail in Crime No.221 of 2012 registered against the accused at Police Station A Section Kandhkot for offences punishable under sections 353, 324, 148, 149, P.P.C. Brief facts of the prosecution case as disclosed in the F.I.R. are that on 1-9-2012 HC Amanullah of Police Station A Section Kandhkot left police station along with his subordinate staff vide Roznamcha Entry No.15 at 0900 hours for petrol duty. While patrolling at various places when police party reached at petrol pump where police party received spy information that notorious dacoit Eiso son of Dholeo Sabzoee along with his companions was proceeding to the Kandhkot town for committing some crime. On such information, police party proceeded to the pointed place and at 0945 they reached at Haibat Link Road where they saw 14 accused persons armed with sophisticated weapons. They were identified by the police officials as

1. Eiso,

2. Illahoo both sons of Dholio,

3. Hakim son of Gul Muhammad alias Guloo 4.Noor Khan son of Misri,

5. Mir Khan son of Bahadur by caste Sabzoe

6. Waheed son of Manzoor Golo

7. Dur Mohammad son of Gulsher

8. Jamsher son of Bakhtiar by caste Sabzoe

9. Allah Bux son of Misri Sabzoe

10. Muhammad Hashim son of Muhammad Qasim Khoso

11. Arzi son of Bati Sheikh

12. Nazar Muhammad alias Lakki son of Hazoor Bux

13. Papoo son of Sanwan Sheikh and

14. Farooq son of Abdul Karim Nasirani (present applicant). It is alleged in the F.I.R. that police challenged the accused persons to surrender but accused persons fired upon the police party with intention to kill. Firing lasted for 10 minutes thereafter accused succeeded in running away. During investigation, applicant/ accused Farooq son of Abdul Karim was arrested. After usual investigation challan was submitted against the accused under sections 353, 324, 148, 149 P.P.C. Bail application on behalf of the applicant/ accused Farooq Ahmed was moved before learned Additional Sessions Judge, Kandhkot, same was rejected by his order dated 18-9-2012 thereafter applicant/ accused approached to this Court for similar relief. Mr. Muhammad Iqbal Mahar, learned Advocate for the applicant/accused contended that despite encounter with the sophisticated weapons no one received injury from either side neither vehicle parked at the wardhat was damaged by firing of 15 accused persons. Applicant was also not arrested from the spot. After arrest of the accused no incriminating article was recovered from his possession. All the P.Ws. are police officials and deeply interested. Offence would not fall under section 324, P.P.C. Applicant/accused was minor at the time of incident. In support of the above submissions he relied upon the school leaving certificate issued by Head Master Mumtaz Abad Kandhkot which shows date of birth of applicant/accused 13-8-1998. Learned State Counsel argued that applicant/accused has been nominated in F.I.R. He had fired upon the police party with intention to kill and there is huge material against the applicant to connect him with the commission of crime which falls under the prohibitory clause of section 497, Cr.P.C. He strongly opposed the bail application. I am inclined to grant bail to the applicant/accused for the reasons that there was cross-firing for about 10 minutes with the sophisticated weapons but no one received injury/scratch from both sides. Even no damage was caused to the police mobile of the police officials. Case has been challaned. All P.Ws. are police personnel therefore, there is no question of tampering with the prosecution evidence. Apparently, in the circumstances of the case application of section 324, P.P.C. is yet to be determined at the trial. It is obviously unbelievable that 14 accused persons succeeded in running away after encounter and police armed with sophisticated weapons could not arrest any of the accused. This aspect of the case needs consideration. The contention of learned State Counsel that all the witnesses have implicated the applicant during investigation, it may be mentioned here that evidence at bail stage cannot be appreciated deeply and only tentative view is to be taken to find out as to whether accused is connected with the commission of alleged offence or not. In such type of cases, basic rule is bail and not jail. On the basis of mere allegation without sufficient material, concession of bail cannot be refused to the applicant/accused as punishment. For the purpose of bail law is not to be stretched in favour of prosecution and if any doubt arises its benefit must go to accused. In the present case apparently doubt arises, its benefit is extended to applicant/accused at bail stage. For the above reasons, I hold that case against the applicant/accused Farooq Ahmed requires further inquiry as contemplated under section 497(2) Cr.P.C. Therefore, concession of bail is extended to the applicant/accused on his furnishing solvent surety in the sum of Rs.100,000 and P.R. bond in the like amount to the satisfaction of trial Court. Needless to mention here that the above observations are tentative in nature and trial Court shall not be influenced by the same at the trial. MWA/F-29/K Bail granted.