2011 SCMR 1644 (PLP)

ASIF SAEED KHAN KHOSA, J.

Through this petition Syed Arshad Ali Shah Bukhari petitioner has called in question the order dated 10-5-2011 passed by a learned Division Bench of the Lahore High Court, Lahore in Criminal Miscellaneous No. 4920-B of 2011 whereby post-arrest bail was refused to the petitioner in case F.I.R. No. 660 registered at Police Station Shandara, District Lahore on 3-4-2011 in respect of offences under sections 324/395/342/148/149/353/186/ 224/225, P.P.C. and section 7 of the Anti-Terrorism Act, 1997.

2. We have heard the learned counsel for the petitioner and the learned Additional Prosecutor-General, Punjab appearing for the State and have gone through the relevant record of this case with their assistance.

3. The only non-bailable offences involved in this case are those under sections 324 and 395, P.P.C. and section 7 of the Anti-Terrorism Act, 1997. .As regards the offence under section 324, P.P.C. the petitioner and his co-accused had allegedly resorted to firing at a police party and 25 crime-empties had statedly been recovered from the place of occurrence but admittedly no such crime-empty had been sent to the Forensic Science Laboratory for comparison with the pistol allegedly recovered from the petitioner's possession. It is also not disputed that none from the complainant/ police party had received even a scratch on his body during the incident in issue and the allegation levelled in the F.I.R. regarding giving a beating to the members of the police party was not supported by any Medico-legal Certificate. In these circumstances applicability of the provisions of section 324, P.P.C. to the case in hand prima facie appears to be suspect. Four out of the eight accused persons nominated in the F.I.R. had been declared by the investigating agency to be innocent reducing he number of culprits to less than five and, thus, instead of section 395, P.P.C. only section 392, P.P.C. could be attracted to this case but even that penal provision apparently does not find support from the circumstances of this case inasmuch as it had been alleged in the F.I.R. that some mobile telephone sets had been snatched away by the culprits from two members of the police party but during the investigation no such Mobile telephone set had been recovered. As far as the offence under section 6 read with section 7 of the Anti-Terrorism Act, 1997 is concerned only a "serious" violence against, members of the police force attracts the definition of terrorism contained in clause (n) of subsection (2) of section 6 of the Anti-Terrorism Act, 1997 and according to the definition of the word "serious" contained in clause (w) of section 2 of that Act "serious" means dangerous to life or property. In the case in hand, according to the prosecution itself, there is no independent proof of any violence against any member of the police force, not to talk of any serious violence endangering life or property of any member of the police force. In this view of the matter it is prima facie doubtful at this stage as to whether the provisions of section 6 read with section 7 of the Anti-Terrorism. Act, 1997 in fact stand attracted to the case in hand or not.

4. For what has been discussed above this petition is converted into an appeal and the same is allowed and, resultantly, the petitioner is admitted to bail subject to furnishing bail bond in the sum of Rs.50,000 (Rupees fifty thousand only) with two sureties each in the like amount to the satisfaction of the learned trial Court. M.H./A-30/K Bail allowed.