2016 PLP 402 (MLD)

SHAHNAWAZ TARIQ, J.

Through the captioned post arrest bail application, applicant Muhammad Nawaz has impugned order dated 13.06.2015, passed by the Court of learned IIIrd Additional Sessions Judge, Sukkur, whereby his earlier bail application was declined.

2. Relevant facts spelt out from the FIR are that on the fateful day, on spy information, police party rushed toward the pointed place and noticed three culprits duly armed, who on seeing police party made straight firing upon the police party and during encounter, applicant sustained bullet injury at his right leg knee while his companions fled away from the spot, hence the instant FIR.

3. Learned counsel for the applicant contended that applicant is owner of Masha Allah Saloon situated near Board Office, Sukkur and 5 days prior to the alleged incident, he was arrested by Sukkur police from his Saloon and demanded Rs.30,000/- for his release but due to failure of the applicant to pay such amount, he has been implicated in the instant false FIR by causing him bullet injury at his knee; that investigation has been completed and the present applicant is no more required for further (sic) in this regard; that despite prior information to the Police, complainant failed to associate any private mashir and during the alleged encounter none of the police personnel sustained bullet injury, which requires further inquiry. In support of such contention, he has relied upon 2008 SCMR 1621, 2000 PCr.LJ 1510, 2000 PCr.LJ 153 and 2011 YLR 1185.

4. While controverting the submissions made by learned counsel for applicant, learned APG vehemently contended that applicant was apprehended on the spot after the encounter with the police and during such encounter he sustained bullet injury while his companions succeeded to flee away.

5. I have considered the contentions raised by the parties and examined the material available on the record which emanate that on spy information regarding the availability of culprits, police party headed by the complainant rushed towards the pointed place where the alleged encounter was held. It is well established that in case of recovery, police has to give preference to private persons to act as mashir to maintain the transparency of the recovery rather than to associate the police persons as mashirs. In the case of State v. Bashir and others, PLD 1997 SC 408, the Hon'ble Supreme Court has observed as under:-- "As regards the above second submission of Mr. M.M. Aqil, it may be observed that it has been repeatedly held that the requirement of section 103, Cr.P.C. namely, that two members of the public of the locality should be Mashirs to the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public. In this regard, it will suffice to refer to a recent Judgment of this Court in the case of Mushtaq Ahmed v. The State, PLD 1997 SC

574. In the case in hand SIP Muhammad Rafique has not been able to give any cogent explanation as to why he was unable to secure two Mashirs from the public."

6. Undeniably, it is a case of ineffective firing and during the alleged encounter none of the police personnel sustained any bullet injury though allegedly the accused persons made straight fires of TT pistol and Kalashinkov upon police party from the short distance and subsequently police recovered 12 empties of TT pistol, 14 empties of Kalashinkov and 30 empties of SMG. In the above peculiar circumstances, the question of intention of accused to kill the police persons would be decided at the trial and it is for the learned trial Court to thresh out the truth after recording evidence of witnesses. It is also well established proposition of law that while considering the question of bail, the Court has to consider the minimum aspect of the sentence provided in the schedule for the alleged offence. Reliance is placed on the case of Jamaluddin v. The State (2012 SCMR 573).

7. Indeed challan has been submitted and applicant is no more required for investigation by police as such his further detention will not serve any useful purpose and even accused could not be deprived of the concession of bail as punishment, while he otherwise is entitled for consideration of the bail.

8. For the above facts and circumstances, the applicant has succeeded to make out a case for grant of bail on the ground of further enquiry as envisaged in Section 497(2), Cr.P.C. Consequently, the applicant is enlarged on bail subject to his furnishing a solvent surety in the sum of Rs.100,000/- and P.R Bond in the like amount to the satisfaction of the learned trial Court.

9. The observations referred supra are tentative in nature and learned trial court shall decide the case strictly on merits. YN/M-88/Sindh Bail granted.