2012 PLP 599 (MLD)

MUHAMMAD ALI MAZHAR, J.

The applicant has applied bail in Crime No. 64 of 2010, lodged at Police Station, Abad, under sections 324,353 P.P.C., 13(d) A.O. and 7 A.T.A.

2. SIP/S.H.O. Abdul Jabbar Mahar lodged F.I.R. on 11-5-2010. According to F.I.R., complainant along with other police officials was patrolling in the territory and received spy information that some dacoit type persons are coming from New VIP road society in white colour Mehran Car. After receiving this information, he along with other police officials reached at indicated place and covered the road by taking positions. They saw that white Mehran car in which some persons were seated was coming, then police party signalled them to stop the vehicle. Meanwhile, three persons from rare seat having KKs and one person from front seat with T.T. pistol alighted from both sides of car and started direct firing upon the police party with intention to commit murder and the driver of the car remained seated in the car. Police party also fired upon them in their defence and the accused started changing the magazines while complainant and A.S.-I. Abdul Jabbar by crawling apprehended one person along with KK and saw that P.C. Sajid, gunman of SPO who was also crawling to apprehend accused raised cries that he had received bullet injury. At that time, two accused persons raised their hands who were apprehended along with weapons. Blood was oozing from foot of one of the accused who disclosed his name Urs son of Gul Hassan. Due to non availability of private mashris, A.S.-I. Nasrullah and A.S.-I. Abdul Jabbar was appointed as mashirs. Other accused persons Anees and Sanwlo were also apprehended and the person having empty T.T. pistol, disclosed his name as Muharram (present applicant). All the accused persons were called upon to show the weapon licenses but no license was shown. It is further stated in the F.I.R. that encounter continued for about ten minutes and during encounter, government mobile received bullet symbols. One KK with magazine and 147 live bullets was recovered from accused Urs, one KK without number and butt with one empty magazine of KK was recovered from accused Sanwalo Jatoi, one KK without number with two magazines and 157 bullets recovered from accused Anees Rahojo and one T.T. pistol of .30 bore with rub number in working condition recovered from applicant Muharram and one Mehran Car No. AQP-960, Karachi with broken rare glass/screen

3. The applicant had applied bail in Anti-Terrorism Court, Sukkur, but vide order dated 5-5-2011, his bail application was dismissed.

4. The learned counsel for the applicant argued that the allegation in the F.I.R. is that encounter took place at least for ten minutes in which heavy firing was made from both sides, but only one injury has been shown at the left thigh of P.C. Sajid Ali which-was simply managed in order to prove the encounter. He further argued that during course of investigation, statements of three witnesses, namely, Muhammad Parial Shaikh, Mujahid Ali Memon and Muhammad Khan were recorded and on their statements, co-accused Aijaz Hussain was let off by the police, who makes entire case doubtful and benefit will go to the applicant. He further argued that Mashirnama of place of incident shows that no blood drops were found by the Investigating Officer at the time of preparing Mashirnama and only two empties of SMG rifle are shown to have been recovered from the place of incident and no empty from the accused side has been recovered while they were allegedly carrying KKs and T.T. pistol.

5. Conversely, the learned D.P.-G. for the State argued that since the applicant was arrested on the spot and his name is also mentioned in the F.I.R. and unlicensed weapon was recovered from his possession, therefore, he is not entitled to be released on bail. However, he admitted that according to Mashirnama no blood drops were found at the place of incident and only two, empties of SMG rifle were recovered.

6. After hearing the arguments from both sides, we have reached to the conclusion that no specific role has been assigned to the present applicant except that he was arrested and one empty T.T. pistol of .30 bore was recovered from his possession. It is also a fact that at the place of incident, no blood drops were found and only two empties of SMG rifle were recovered. Nothing has been shown that any empty of KK or T.T. pistol were found at the place of incident. It is also an important aspect to look into that according to F.I.R., accused alighted firing from both sides of car, but according to the F.I.R., only rear glass/screen of Mehran car was broken and no bullet symbols on the car were found which is quite astonishing, especially in the circumstances when the allegation against the accused in the F.I.R. is that they started firing from both sides of car, police in defence had also started firing and one police official was injured and one accused was also injured, but Mehran car was not damaged but only its rear glass/screen was broken and no other bullet symbols were found. In the F.I.R., complainant stated that he fired 35 bullets from his official SMG rifle but only two empties of SMG rifle were recovered from the place of incident. All such questions cast doubts and it is well settled that even at the bail stage, benefit of doubt if any may be extended to the accused.

7. After tentative assessment of the material available on record, we are of the firm view that the case of the applicant requires further inquiry. The case could only fall within the scope of further inquiry under section 497, Cr.P.C. if the court finds that on the material before it no reasonable ground exists for believing that the accused is guilty of a non bailable offence. The condition laid down in clause (2) of section 497, Cr.P.C. denotes the existence of sufficient grounds for further inquiry into guilt of accused which means that the question should be such which has nexus with the result of the case and may show that accused is not guilty of the offence with which he is charged. 8. as a result of above discussion, we have no hesitation to hold that there are no reasonable grounds to believe that the applicant is guilty of any non-bailable offence. Consequently, this bail application is allowed and the applicant is admitted to bail subject to his furnishing solvent surety in the sum of Rs.200,000 (Rupees two lacs) with PR bond in the like amount to the satisfaction of the trial Court. The above findings are tentative in nature and will not prejudice the case of prosecution. M.W.A./M-2/K Bail allowed.