2016 P Cr (PLP)

ABDUL RASOOL MEMON, J.

Supra titled bail applications have been filed by applicant/accused Javed in cases Crime No. 18/2015 under sections 353, 324, 34, P.P.C., 6 of ATA and Crime No.19/2015 under section 23-A, Sindh Arms Ordinance, 2013 of Police Station GOR, Hyderabad as both are outcome of one and same incident, therefore the same are decided through this common order.

2. The relevant facts, briefly stated, are that on 21.3.2015 a police party head by complainant SIP Ameer Alam Junejo during checking in front of Sindh Museum saw three persons coming on two motorcycles coming from Ponam Chowk for personal checking when police gave signaled to stop them, instead of stopping motorcycles they tried to run away. Being suspect police followed them. It was 1950 hours when police reached near to accused at corner of Wapda Sports Ground adjacent to Niaz Stadium. They opened fire on the police party with intention to kill them. In retaliation police also made firing upon the culprits, resultantly two motorcycle riders were fell down and were apprehended in injured condition. On enquiry, they disclosed their names as Javed Khatian (applicant) an unlicensed .9 mm pistol with three bullets was recovered from his possession, he was bleeding from his right leg while the other person disclosed his name as Waqar, he had also received injury on his leg a .30-bore pistol with two bullets was recovered from his possession. Accused disclosed the name of their third companion as Zubair. All the three accused were already wanted in case Cr. No.14/2015 of PS GOR Colony under section 395, P.P.C. and 17/3, HO. The motorcycle of accused being without documents was also recovered under section 550, Cr.P.C. The recovered weapons were sealed on spot. Police prepared such mashirnama and then both the injured accused were taken to Hospital. Complainant lodged separate FIRs against the accused. During treatment accused Waqar succumbed to his injuries.

3. The learned counsel for the applicant/accused contended that prior to this incident, a news regarding arrest of mother of applicant for putting pressure upon her for arrest of applicant was published in Daily KAWISH on 13.03.2013, Jamshoro Police arrested the applicant and handed over him to GOR Police, who by showing a fake encounter caused firearm injuries on his leg and foisted the weapon upon him. He argued that no independent person is cited as mashir or witness; that the applicant is a poor fisherman, police used to demand fish from him without paying money and on his refusal he has falsely been implicated in this case. In support of his contention, the learned counsel has relied upon the case reported as Muharram v. The State (2012 MLD 599), Shah Faisal v. The State (2011 MLD 1075), Ashfaq Kareem alias Khalil-ur-Rehman v. The State (2009 PCr.LJ 679) and Junaid and 2 others v. The State (2000 PCr.LJ 1510).

4. On the other hand the learned APG for the State argued that the applicant was arrested on the spot with an unlicensed pistol and is nominated with specific role of making firing upon police, as such he is not entitled to be released on bail.

5. As per prosecution cases, the applicant and deceased accused were arrested after firing on police party but it is very astonishing that the exchange of firing between the accused and police party lasted for considerable time in which only accused had sustained injuries and neither the police nor their official vehicle was hit, even not a single scratch was received by Motorcycle allegedly recovered from the accused. The Ballistic examination report of the pistol allegedly recovered from present applicant and empty shells of same, were shown to have been collected from place of incident is also not available in the police file, which all have created the prosecution case apparently doubtful.

6. So far as the case registered under section 23(i) A of Sindh Arms Act, 2013 against applicant is concerned, it is connected and an off shoot of the main case, wherein very presence of the applicant with alleged weapon has been held as matter of further enquiry, as such, on same ground the recovery of alleged weapon also requires further enquiry. Even otherwise it is settled law that the bail of accused cannot be withheld as punishment being offence falling under Prohibitory Clause of section 497, Cr.P.C. The citations relied upon by the learned counsel for the applicant, have full implication to the facts and circumstances of this case. Admittedly the prosecution witnesses are police officials, therefore there is no chance of tampering.

7. Keeping in view the given circumstances the applicant has succeeded to make out a case for bail.

8. Above are the reasons of our short orders dated 16.07.2015 whereby the applicant was granted post arrest bail. RR/J-15/Sindh Bail granted.