2017 PLP 327 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned post-arrest bail applications, applicant Gul Baig has impugned order dated 13.04.2016, passed by the Court of learned Special Judge, Anti-Terrorism, Shaheed Benazirabad, whereby his earlier bail applications were declined by the same order.

2. Necessary facts spelt out from instant application are that on 07.03.2016 at 0100 hours, complainant SHO Riaz Ahmed Bhutto along with sub-ordinate, during patrolling reached on link road leading from Sanghar to Chotiyaroon and in the headlight of vehicle, they saw five persons standing on left side of the road, out of them two were armed with Kalashnikovs, two with pistols and one with repeater, when police vehicle reached near to them, they started straight firing with their weapons upon police officials with intention to commit their murder but front side tyre of their vehicle was burst. Police officials made aerial firing in their defence and said encounter continued for 30 minutes. Due to finishing of bullets two accused namely Bilawal Khaskheli and Gul Baig Shar were apprehended with Kalashnikovs with empty magazines. From the spot, 5 empties of Klashanikov, 8 empties of 30-bore pistol, 3 empties of 12 bore cartridges fired by accused party, while six empties of SMG fired by police were secured and sealed. Complainant lodged FIR No.16 of 2016 under sections 324, 353, 427, 147, 148, 149, P.P.C. and sections 6/7, ATA, and another FIR No.18 of 2016 under section 23(i)-A, Sindh Arms Act, 2013 against applicant.

3. Learned Counsel for applicant vehemently contended that applicant is innocent and has been falsely implicated in instant case due to political rivalry with Ruling Party as petitioner belongs to PML(F); that co-accused Bilawal was already in custody of the Police against which his father filed criminal miscellaneous application under section 491, Cr.P.C. before the Court of learned Sessions Judge, Sanghar and raid was also conducted at Police Station on 06.03.2016, but detenue could not be recovered, and on next day i.e. 07.03.2016 instant FIR was registered by narrating a false story, while applicant was apprehended from his house; that alleged incident occurred during midnight on link road where public was not available, hence no case for act of terrorism has been made out; that alleged encounter between the Police and 5 armed accused persons with a short distance was held for 30 minutes but none of the Police personnel sustained any bullet injury except damaging one tyre of police mobile; that applicant is not previous convict. Counsel has relied on 1990 SCMR 1085, 2013 PCr.LJ 1547, 2013 YLR 2614, 2016 PCr.LJ 683, 2014 PCr.LJ 1430 and 2014 MLD 1123.

4. While refuting the above submissions, learned D.P.G contended that applicant along with his four companions had made straight firing upon the police party with deadly weapons, hence provisions of ATA are attracted; that empties of Kalashnikov and pistol were recovered from the spot which proved that said encounter was held, however, he candidly submitted that previously applicant was not involved in any criminal case.

5. Heard learned Counsel for parties and examined the material available on record.

6. Perusal of record emanates that allegedly encounter between the Police and 5 accused armed with lethal weapons was continued for 30 minutes during midnight on link road with the short distance between the parties, nevertheless during the course of encounter neither any accused nor any police personnel sustained any bullet injury and only one tyre of police mobile was damaged. In present case, the ingredients of sections 353 and 324, P.P.C. are yet to be determined at trial and above incredulous circumstances demand that allegations stretched and elongated by the prosecution with the intention to attempt to commit murder of police official should be scanned with utmost care and caution. Even while considering plea of bail, Court should adjudged the set of allegations of prosecution and defence plea in juxtaposition, and if defence succeeded to create any slightest iota of doubt in prudent mind, the benefit of such doubt must be exercised in favour of accused. Past record shows that neither applicant was involved in any criminal case nor was convicted for any crime. Consequently, at the most the alleged incident is a case of ineffective firing and in case nature cases bail should be granted as matter of right, as liberty of any person could not be curtailed mere on assumption and presumption, while he deserves for concession of bail on merits.

7. It is significant to mention that allegedly co-accused Bilawal was also arrested at the spot along with the applicant by the Police on 07.03.2016 at midnight. Conversely, the father of co-accused Bilawal had filed criminal miscel-laneous application under section 491, Cr.P.C. before the Court of learned Sessions Judge, Sanghar regarding the illegal detention of his son at same PS, upon which a raid was conducted on 06.03.2016, but unfortunately said detenue was not available at the PS. Thereafter on 07.03.2016 instant FIR was lodged by the complainant.

8. Contention raised by learned Counsel for applicant that applicant is belonging to PML (F) and due to political rivalry with the persons of Ruling Party, he has been arrested by the Police and involved falsely in the present case. This aspect of the incident also could not be ignored in view of the hostile attitude and aggressive mind set of our society.

9. Challan has been submitted and applicant is no more required further for the purpose of investigation to the police and all the witnesses are police officials, thus there is no apprehension of tempering with the prosecution evidence. Applicant is behind the bars since about 6 months but prosecution has failed to examine a signal witness to substantiate the charge, while procuring the attendance of PWs is not a difficult task for prosecution as all PWs are still posted at PS, such demeanor of the prosecution reflects that prosecution is not interested in early conclusion of the trial and is merely interested to keep the applicant behind the bars, hence further detention of applicant will not serve any useful purpose and no one can be detained for an indefinite period.

10. Considering the above circum-stances, applicant has succeeded to make out a case for grant of post-arrest bail on the ground of further inquiry as contemplated under section 497(2) Cr.P.C. Consequently, applicant is admitted to post-arrest bail in both caption bail applications on furnishing solvent surety in the sum of Rs.100,000/- (Rupees One Lac) each and P.R Bond in the like amount to the satisfaction of learned trial Court.

11. The observations made supra are tentative in nature and learned trail Court shall decide the main case strictly on merits. WA/G-26/Sindh Bail allowed.