2016 P Cr (PLP)

SHAHNAWAZ TARIQ, J.

By this single order, we intend to dispose of all these three bail applications vide No.D-462 of 2015 filed by applicants Jan Mohammad alias Janan and another; D-476 of 2014 filed by applicant Hakro alias Abdul Haq and another and D-477 of 2015 filed by applicant Shabir, arising out of Crime No.08 of 2012, against the order dated 05.06.2015, passed by the Anti-Terrorism Court, Sukkur, whereby their earlier post arrest bail applications were declined.

2. Relevant facts spelt out from the FIR are that on 12.02.2012, at 2015 hours, police party during patrolling reached near Village Daman Lolai, where all of sudden 27 culprits duly armed with lethal weapons, emerged from sugarcane crop, out of them 17 were identified with specific arms on the head light of police mobile and they attacked upon police and said encounter lasted for 15 minutes and 4 police personnel sustained firearm injuries, and culprits fled away from the spot.

3. It is, inter alia, contended by learned Counsel for applicants that applicants are innocent and have been falsely implicated in the alleged offence which occurred during night hours on the road and is covered by Sugarcane crop from both sides, hence possibility of identification of accused on the light of vehicle has no reason to believe; that there are general allegations against all the accused persons, while co-accused Wazir Lolai was let-off during the course of investigation against whom same allegations were levelled in FIR which requires serious consideration; that applicants were granted interim pre-arrest bail by learned trial Court in the year 2012 and they were attending the trial regularly and never misused the concession of bail but learned trial Court dismissed their bail application vide order dated 13.05.2015 and applicants were taken into custody; that prosecution has already examined the complainant, mashir and one injured but they could not identify applicants in Court; that in another of FIR No.07 of 2012, under section 302, P.P.C. in respect of the murder of SIP Altaf Hussain was registered against same accused persons, and present applicant were granted bail by the honourable Supreme Court of Pakistan vide order dated 03.09.2015; that no specific role has been assigned to applicants. Reliance is placed upon the cases reported in 2010 SCMR 1178, PLD 1994 SC 65 and 1981 SCMR 504.

4. While controverting the above submissions, learned APG vehemently contended that names of applicants are mentioned in FIR with specific weapons and attacked upon police party and such encounter lasted for about 15 minutes, as such applicants are not entitled for bail. However, he conceded that the alleged incident occurred during night hours near sugarcane crop and some material witnesses have been examined during the course of trial.

5. We have heard learned Counsel for the parties and scanned the material available on record, which emanate that the alleged incident occurred during night hours and the place of incident is covered by sugarcane crop from both sides. The question of identification of 17 nominated accused persons with specific arms along with 10 unidentified persons on the light of police mobile requires serious consideration. Indeed, no specific role has been assigned to the present applicants and allegations leveled against them are of general in nature while applicants Shabir, Hakro @ Abdul Haq and Abdul Rehman were not nominated in FIR and subsequently their names have been mentioned in Challan. It is significant to mention that applicants remained on pre-arrest bail granted by learned trial Court from 24.10.2012 to 13.05.2015, and they had joined the investigation but crime weapons were not recovered from their possession and there is no material available on record that applicants have not cooperated with the Investigating Officer. More so, during the period of bail neither applicants misused the concession of bail nor escaped during the trial. Applicants are no more further required for investigation and there is no apprehension of tampering with the prosecution evidence as all the PWs are police officials and some of the material witnesses have already been examined during the trial. It is well settled that concession of bail could not be withheld for the purpose of punishment and basic rule is bail and not jail. Considering the above circumstances, we are of the view that no useful purpose will be served if applicants are declined bail. All the applicants have already been granted bail by the honourable Supreme Court of Pakistan in Crime No.7 of 2012, under sections 302, 324, 353, 148, 149, P.P.C. read with section 7, A.T.A., 1997 vide order dated 03.09.2015 in Crl. P.L.As. No.56-K and 57-K of 2015.

6. Considering the facts and circumstances referred supra, applicants Jan Mohammad @ Janan, Jatoi, Hakro @ Abdul Haq, Abdul Rehman and Shabir have succeeded to make out a case for their enlargement on post arrest bail on the ground of further inquiry as envisaged under section 497(2), Cr.P.C. Consequently, applicants are admitted to post arrest bail on furnishing solvent surety in the sum Rs.2,00,000/- ( Rupees Two lacs) each and P.R. bond in the like amount to the satisfaction of the learned trial Court.

7. Nothing herein shall affect the determination of the facts at the trial or influence the trial Court in reaching its decision on the merits of the case and observations made supra are tentative in nature. These are the reasons of short order dated 07.10.2015, whereby applicants were granted bail by this Court. SL/J-4/Sindh Bail allowed.