2005 PLP 3211 (YLR)

RAHMAT HUSSAIN JAFFERI, J.

1. Dismissed being infructuous.

2. Granted subject to all just exceptions.

3. On 17-7-2004 at 1-30 a.m. in the night on the National Highway near Wali Shah Muqam ten dacoits robbed the bus. The dacoits also fired at the bus with the result that three passengers received injuries. In the meantime police party arrived there. There was an encounter between the police and dacoits resulting injuries to two police constables namely Muhammad Ramzan and Akbar Gadhi. Before that the dacoits robbed the passengers and after the encounter with the police they ran away. The learned Advocate for the applicant has stated that the name of the applicant is not mentioned in the F.I.R.; that there is no identification parade in this case; that no recovery has been made from the possession of the applicant but the applicant has been involved on the statement of two injured police constables Muhammad Ramzan and Akbar Gadhi each alleged that they had identified the applicant at the time of the incident. In this connection he has stated that the applicant has enmity with the Moro Police. As two months prior to the incident the applicant had moved an application before Ombudsman. Notice was issued to the police. Subsequently the Ombudsman passed order on 10-7-2004 and after seven days this incident took place within the jurisdiction of Moro Police Station and the police in order to take revenge of moving the application, have falsely involved the applicant. He has stated that two P. Ws. were not able to identify the accused in dark night and there was no source of light at the place of incident. Conversely the learned A.A.-G. has strongly opposed the grant of bail on the ground that this is the case of highway robbery in which three passengers and two police officers have received injuries; however he has admitted that the name of the applicant is not mentioned in the F.I.R.; that no identification test has been held through private witnesses and no recovery has been made from the applicant. I have given due consideration to the arguments, gone through the material available on record and found that no doubt this is a case of highway robbery in which 10 dacoits intercepted the bus and fired at it with the result that three passengers received injuries. The dacoits have also robbed the passengers and then police arrived and encounter took place between the police and dacoits. Apparently the dacoits were not identified at the place of the incident by any person except the two police constables Muhammad Ramzan and Akbar Gadhi, as alleged. For that the case of the applicant is that two months prior to the incident he had moved an application before the Ombudsman against Moro Police in which notices were issued to them and that on 10-7-2004 Ombudsman passed the order and thereafter he has been involved in this case. This point can be properly thrashed out at the time of trial. However a ground has been shown by the applicant which requires consideration as to whether in the circumstances of the present case the two police constables Muhammad Ramzan and Akbar Gadhi were able to identify the applicant at the place of incident. It is not the case of the prosecution that the dacoits B came very close to the police as such they were able to see the faces of the dacoits nor it is the case of the prosecution that there was sufficient light on which the police officers were able to see the dacoits at some distance. Normally in the cases of encounter each party tries to conceal itself so as to save itself from the firing of the other party. In such a situation, the question arises whether the two police officers Muhammad Ramzan and Akbar Gadhi were able to see the faces of dacoits and were able to identify them. In this back ground coupled with the alleged enmity with the police by the applicant, this Court is of the considered view that the applicant has made out a case of bail at this stage. Therefore this Court grants B bail to the applicant in the sum of Rs.3,00,000 with solvent surety and P.R. bond in the like amount to the satisfaction of the trial Court. The application is allowed. H.B.T./A-242/K Bail granted.