2013 P Cr (PLP)

SALAHUDDIN PANHWAR, J.

The applicant/accused Muhammad Nawaz alias Bajoo seeks post-arrest bail in Crime No. 23 of 2012 for an offence punishable under sections 302, 324, 353 395, 147, 149, P.P.C. and 7, Anti-Terrorism Act, 1997 registered with Police Station, Baberloi.

2. The relevant facts, as set-out in the F.I.R., are that on 15-3-2012 complainant along with his subordinate staff during patrolling received information from one Irshad son of Muhammad Akram that 4 unidentified accused and 6 unidentified accused persons have committed dacoity in his house; complainant rushed at the pointed place, where accused persons were taking away two buffaloes. The police encountered the dacoits; during encounter one PC Ghulam Fareed sustained firearm injuries on his both arms. Thereafter injured was shifted to Civil Hospital, Khairpur and the accused taking advantage of date garden and darkness, escaped away. The police party returned to Police Station and lodged the F.I.R. Thereafter injured PC-Ghulam Fareed succumbed to injuries; investigation was carried out; accused were sent up for trial; name of applicant was placed in Column No.2.

3. Learned counsel for the applicant/accused inter alia contends that there are general allegations against the accused persons and no specific allegations are attributed to the applicant/accused; the incident time is night, source of light is search light, therefore, it is difficult to identify the accused persons; during the course of investigation statement under section 162, Cr.P.C. were recorded which reveals that witnesses have not implicated the present applicant/accused, thus in report under section 173, Cr.P.C. the name of the applicant/accused was placed in Column No.2; the case of the applicant/accused falls within the ambit of further enquiry; the applicant/accused is entitled for concession of bail. He has relied upon the case of Mehram Ali v. Federation of Pakistan (1998 SCMR 1445); case of Badaruddin and 2 others v. The State (2007 PCr.LJ 502); and case of Muhammad Murad and others v. The State and others (2009 SCMR 348).

4. Conversely Mr. Abdul Rehman Kolachi, learned A.P.-G. argued that the name of the applicant/accused transpires in the F.I.R.; the applicant/accused along with co-accused persons committed dacoity; when police encircled them, they caused deterrence, resultantly, in such episode, PC Ghulam Fareed lost his life in the line of official duty, thus the applicant/accused is not entitled for concession of bail.

5. After meticulous examination and perusal of record, it appears that name of the applicant/accused transpires in the F.I.R. with specific allegation that at the time of offence he was armed with G-3 Rifle and caused direct fire shots upon the police party; caused deterrence resulting into death of PC Ghulam Freed; it is also alleged that applicant/accused along with the co-accused persons committed dacoity in the house of one Irshad Ali and the said Irshad Ali has categorically implicated him in his statement recorded under section 161, Cr.P.C. Regarding the plea that witnesses in their section 162, Cr.P.C. statements did not implicate the applicant; it is revealed that at the time of taking cognizance the learned Special Judge issued notices to the witnesses to check the veracity and authenticity of statements under section 162, Cr.P.C.; pursuant to the notices, the witnesses appeared and denied the said statements and further categorically stated that the Investigating Officer has not recorded said statements. While, making tentative assessment it appears that applicant/accused is involved in a case of capital punishment and no sufficient material is available to make the case of applicant/accused within the limitations of further inquiry.

6. Regarding the plea of applicant/accused that during investigation, the Investigating Officer has found him innocent and applicant/accused is placed in Column No.2, it is suffice to say that police report ipse dixit is not binding upon the court, more particularly; where the witnesses have denied the statements recorded under section 162, Cr.P.C., by Investigating Officer. It is settled principle of law that, while deciding the bail application, court has to see the facts and circumstances of the case and if same are in negation or overwhelming upon the police report, in, such eventuality, the outcome of such report is of no help for the accused at such stage of the bail.

7. With regard to the case-law relied upon by the learned counsel for the applicant/accused, it is germane to say that in criminal administration of justice; each case is to be decided on its' own peculiar facts and circumstances, therefore, by examination of the above case law, it is manifest that facts and circumstances are entirely different, thus such precedents are not helpful in the instant case to the applicant.

8. As discussed above, the applicant/accused has failed to bring his case within the purview of subsection (2) of section 497, Cr.P.C.; thus the applicant is not entitled for post-arrest bail. However, the trial Court is directed to conclude the trial within a period of three (3) months within the spirit of fair trial as enshrined under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973.

9. The observations made hereinabove are tentative in nature and would not prejudice the case of either party. Above are the reasons of our short order dated 21st February, 2013. MWA/M-42/K Bail refused.