2012 P Cr (PLP)

MUHAMMAD ALI MAZHAR, J.

The applicants have applied for bail in Crime No.21 of 2011, lodged at Police Station, Wasti Jiwan Shah under sections 302, 324, 353, 148, 149, P.P.C., 13-D Pakistan Arms Ordinance, sections 3 and 4, Explosive Substances Act and section 7 of Anti-Terrorism Act 1997.

2. SIP Haq Nawaz Lolai, SHO, Wasti Jiwan Shah Police Station lodged F.I.R. on 22-3-2011, in which, he stated that on 20-3-2011 at 2300 hours, the DPO Ghotki ordered him to arrange police squad and arrive at Police Line, Mirpur Mathelo, on which he arranged squad and reached there with many other police officials, where the DPO briefed them that head money dacoit namely Sultoo Shar and his 50/60 other companions are gathered in Forest Sheroo Shar with intention to commit heinous offences on which, the complainant along with police party proceeded towards pointed area and took position. They saw 50/60 armed dacoits whom the complainant and other staff identified and their names are also mentioned in the F.I.R. The names of 65 alleged dacoits are mentioned in the F.I.R. out of which, the names of the present applicants are mentioned at S.No.57 and 58 and 10 unidentified persons are also mentioned. The Police party asked them to surrender but accused dacoits started firing upon the police party with intention to commit their murder on which the Police Party had also started firing in their defence. From time to time encounter continued between police and dacoits and culprits constrained to come out. At about 1700 hours during the encounter PC Muhammad Sachal sustained fire arm injury on his back and he died. Police encircled the dacoits at about 2000 hours. Thereafter, firing was stopped by the accused side. At about 2015, two injured dacoits were found one Abdul Jabbar (applicant No.1) with one Kalashnikov which was lying near to him and he also sustained injuries on back and over back side of his neck and another dacoit disclosed his name Muhammad Nawaz (applicant No.2), who sustained injuries on left arm and neck and one SBBL gun was lying near to him. On enquiry they disclosed that their weapons are unlicensed and both were arrested in presence of mashirs. The police surrounded the area for the night and early in the morning on 22-3-2011 at about 0630 hours, they found that 09 dacoits with weapons are lying dead, they were identified by the staff, their names are also mentioned in the F.I.R. and they were also identified by the arrested accused. According to the complainant, he fired 545 bullets with official SMG rifle during the encounter. One Kalashnikov recovered from the applicant No.1 with empty magazine and one SBBL gun was recovered from applicant No.2. Other weapons were also recovered from dead dacoits, which are more particularly described in the F.I.R.

3. Both the applicants moved their bail application in the Anti-Terrorism Court, Sukkur, which was dismissed on 9-6-2011.

4. The learned counsel for the applicants argued that there was at least 30 hours delay in lodging of F.I.R., which was not satisfactorily explained. He further argued that the allegations against the applicants are general in nature. PC Muhammad Sachal had sustained only one injury and at this stage this cannot be said who caused fatal injury to the deceased and so far as recovery of weapons is concerned, the police party has foisted the same upon the applicants. He further argued that it is a case of further inquiry, therefore, both the applicants are entitled to be released on bail.

5. The learned APG opposed the bail application and argued that both the applicants are hardened criminals and the police party arrested the applicants being dangerous dacoits during encounter. He further argued the applicants had been arrested on the spot along with weapons and one police official has lost his life during encounter and 9 dacoits had also died which shows that the encounter was genuine.

6. After evaluating the material available on record, we are of the view that no mala fide or any enmity has been alleged against the police officials to involve the present applicants in the case in hand. Both the applicants were arrested on the spot and weapons were also recovered from them. It is also a matter of fact which is clearly manifesting from the record that 9 dacoits have died during encounter and one police official has lost his precious life, therefore at this stage no doubt can be cast upon the encounter or its genuineness. During course of arguments, the learned counsel frankly conceded that besides one police official, nine persons of applicants lost their life during encounter who were identified as dacoits by the police. Keeping in view the above circumstances, the arguments advanced by the learned counsel for the applicants that it is a case of further enquiry is misconceived. Mere possibility of further enquiry exists almost in every criminal case but it is no ground for treating matter as one under subsection (2) of section 497, Cr.P.C. The practice of making out a case of further enquiry by the court in a vague manner to make out a case for grant of bail was deprecated by the honuorable Supreme Court in its judgment reported in 2006 SCMR 1265. A case would only fall within the scope of further enquiry under section 497(2), Cr.P.C. if the court reaches to a conclusion that on the material available before it, there are no reasonable grounds to believe that the accused is guilty of a non-bailable offence or an offence punishable with death, imprisonment for life or imprisonment for 10 years and in the absence of such finding there will be no occasion for the court to hold that the case is one of the further enquiry. So far as the ground of delay in lodging F.I.R. is concerned, it is not sufficient ground per se to grant bail without attending all other relevant circumstances. At this stage, on tentative assessment of material available on record, there are no reasonable grounds to believe that the applicants are not guilty of non-bailable offence.

7. For the aforesaid reasons, we find no force in this bail application which is dismissed. However it is clarified that above findings are tentative in nature and will not prejudice the case of either party. M.W.A./A-2/K Application dismissed.