2017 PLP 216 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned post-arrest bail application, applicant Abdullah has impugned order dated 01.02.2016, passed by the Court of learned Additional Sessions Judge (H), Sukkur, whereby his earlier bail application was declined.

2. Relevant facts mentioned in bail application are that complainant ASI Sanaullah Konhar during patrolling at 2340 hours, intercepted four armed persons at link road near village Basar Maitlo. There was encounter between police and culprits and subsequently, applicant was apprehended in injured condition and one unlicensed pistol along with 3 live bullets, was recovered from his possession, hence instant FIR.

3. Learned counsel for applicant contended that applicant is innocent and has been falsely implicated in instant crime by complainant due to ulterior motive; that allegedly encounter continued for 10 minutes but none from police personnel sustained any bullet injury nor police mobile sustained any kind of damage; that in fact applicant was apprehended one day prior to lodgment of FIR by local police and his custody was handed-over to Police Station Jhangro, and police after causing bullet injuries lodged instant false case; that there are series of contradictions in FIR and mashirnama of arrest and recovery, which have created serious doubt regarding the truthiness of occurrence; that applicant never remained involved in any criminal case.

4. Learned APG contended that applicant was apprehended at the spot in injured condition, which reflects that encounter was occurred between police and culprits, hence applicant is not entitled for grant of bail.

5. Perusal of material available on record reflects that allegedly police party intercepted at 2340 hours, 4 armed culprits available on the link road near village Basar Maitlo, where encounter was held between police party and 4 culprits for about 10 minutes with a short distance but none of the police personnel sustained any bullet injury nor any scratch was caused to the police mobile. Conversely, due to midnight police secured 10 empties of TT pistols, 8 empties of SMG and 8 empties of G-3 gun which also requires serious consideration. Perusal of medical report reflects that applicant sustained 2 bullet injuries on the lower part of his leg. There is no criminal record of the applicant nor he was previously convicted in any criminal case. Admittedly, investigation has been completed and applicant is no more required further for investigation, thus his further detention will not serve any useful purpose. Moreover, applicant is behind the bars since last more than three and half months but prosecution has failed to examine a single witness to substantiate the charge against the applicant. It is significant to mention that all the 03 witnesses are police officials and it was not difficult task for the prosecution to procure their attendance as they are in service and still posted at their concerned Police Station. Even there is no apprehension of tampering with the evidence as all PWs are police officials. The offence under section 353, P.P.C. is bailable and punishable for 2 years or fine. To ascertain the offence for attempt to commit murder of the police (sic), and bullet injuries sustained by the accused on the lower part of his leg, requires serious consideration and further probe as none of the police personnel sustained any injury, and it is for the learned trial Court to thresh out the truth after recording the evidence being adduced by the prosecution and defence during trial, thus accused could not be deprived from the concession of bail mere on the ground that he sustained injuries during the alleged encounter with police. Reliance is placed on the case of Moundar and others v. The State 1989 SCMR 6, Raja Muhammad Younus v. The State (2013 SCMR 669) and Umer Hayat v. The State (2008 SCMR 1621).

6. Considering the above facts and circumstances, applicant has succeeded to make out his case. for grant of bail on the ground of further enquiry as contemplated under section 497(2), Cr.P.C. Consequently, applicant is enlarged on post-arrest bail subject to his furnishing solvent surety in the sum of Rs.50,000/- and P.R. Bond in the like amount to the satisfaction of learned trial Court.

7. The observations made above are tentative in nature and learned trial Court shall decide the case strictly on merits. HBT/A-73/Sindh Bail granted.