2008 PLP 1739 (YLR)

NADEEM AZHAR SIDDIQI, J.--Through this application, applicant seeks bail in case vide Crime No.93 of 2007, P.S Bakrani, under sections 324, 353, 412, 148 and 149, P.P.C. Briefly stated, the facts of the case are that, on the fateful day a police party of P.S Bakrani headed by complainant A.S-I. Muhammad Yaseen Jamarani was on patrolling duty; during patrolling when they reached on bridge of Regulator-57 of Dadu canal, they noticed six armed persons standing there, while a motorcycle was standing near to them. The said persons were identified by the police party to be Mumtaz Chandio having Kalashnikov, Raja Faysal Chandio with repeater, Ayaz Chandio duly armed with Kalasnikov, Muhammad Heesbani having repeater, Nazir Jatoi with Kalashnikov, Aijaz Heesbani with pistol; they on seeing police party tried to escape. The police party asked them to surrender; in the meanwhile they started firing at police party, which was retaliated by the police party. The encounter continued for about ten minutes and after that, the police party succeeded to apprehend one of the culprits, namely, Aijaz Ali Heesbani along with pistol, while rest of them made their escape good. The motorcycle was also secured by the police. On enquiry the captive disclosed the motorcycle to be robbed property. The learned trial Court declined bail plea of the applicant mainly on the ground that he is nominated in the F.I.R. with specific role of firing upon police party, and that he was apprehended on spot along with crime weapon and the robbed motorcycle; and that the offence with which the applicant is charged falls within prohibitory clause of section 497 sub-section (1), Cr.P.C. Learned counsel for the applicant mainly contended that no independent person has been cited as witness or mashir of the alleged incident. He further contended that it is surprising that during face to face encounter which lasted for ten minutes, none from either party received any injury. He contended that the alleged recovered weapon was neither sealed on spot, nor it was sent to the ballistic expert. Mr. Nisar Ahmed Abro, learned State Counsel has opposed this bail application, on the ground the applicant has been nominated in the F.I.R., with specific role of making firing upon police party, and that he was caught hold red-handed on spot along with crime weapon and robbed property; therefore, he is not entitled for concession of bail. I have heard the learned counsel for the parties and perused the record. The allegation against the applicant is indiscriminate firing upon police party. In the firing none got any injury. The applicant was allegedly apprehended on the spot along with weapon after cross firing but surprisingly the police was not able to recover any empties from the place of Vardat. The mashirnama of Vardat was prepared after one day of the incident and the reasons of such delay are not know. The police has not sealed the recovered weapon at the spot nor there is any material on record to show that the same was sent to ballistic expert for his opinion. From non-recovery of empties coupled with delayed preparation of mashirnama and non-sealing and sending the crime weapon to expert create doubt regarding the involvement of the applicant in the commission of offence. Since the doubt is created a case of further enquiry has been made out. In the reported case of S. Amanullah Shah v. The State PLD 1996 SC 2412 the Honourable Supreme Court has held that where doubt creates regarding participation of the accused in the commission of crime. It is better to keep accused on bail rather to keep him in jail. I am satisfied that there are no reasonable grounds for believing that applicant has committed a non-bailable offence. The bail application is allowed. The applicant be released on bail on his furnishing solvent surety in the sum of Rs.1,00,000 and P.R bond in the like amount to the satisfaction of trial Court. In case the applicant is found misusing the bail the trial Court is at liberty to initiate action against him in accordance with law. H.B.T./A-47/K??????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.