2017 PLP 1320 (YLR)

MUHAMMAD SALEEM JESSAR, J.

By means of instant application under section 497, Cr.P.C., the applicant/ accused, namely, Dost Muhammad alias Dosoo Sahito seeks his release on post arrest bail, in Crime No. 37 of 2016 registered at Police Station Hussainabad, Hyderabad for the offences under sections 324, 353, 34, P.P.C. After registration of the case and completion of legal formalities, police have submitted the challan before the competent Court of law having jurisdiction on 01.05.2016. The case is now pending for trial before the Court of learned IIIrd Additional Sessions Judge, Hyderabad Re: State v. Dost Muhammad @ Dosoo and others.

2. The crux of the prosecution case is that police party headed by SIP Ghulam Muhammad Leghari left police station under their daily diary (DD) entry No.20 at 2200 hours on 17.04.2016 along with his subordinates, namely, ASI Asif Ali Jatoi, HC Shoban Ali, PC Irfan Ali in official vehicle bearing No.SP-560-A. After visiting different places when they reached at the Mehran Oil Mill, Giddu chowk, they started snap checking and during their snap checking, a motorcycle was coming from the Giddu Octroi Post, upon which, three persons were riding. The police party indicated them through torch light for stop who by seeing the police party tried to take U-turn but police accosted them to stop. It is further alleged that at 2330 hours the alleged accused, in order to commit their Qatl-i-amd, had made straight fires upon the police party. The police also retaliated in their defense. Per prosecution, all three accused fallen down along with their motorcycle. However, it is alleged that person sitting in the middle on motorcycle made his escape good along with his pistol by taking advantage of darkness. It is alleged that the said accused was identified by ASI Asif Ali Jatoi to be Yar Muhammad son of Hamzo Rajar. The police party accosted to the persons fallen down and directed them to surrender who asked that they are surrendering. The persons were apprehended by the police in strategic manner. The person sitting behind the seat of motorcycle, his pistol was taken into possession and the pistol of the person who was riding motorcycle was also taken into possession by the police. The blood was oozing from the legs of both accused below the knee. They were inquired for their whereabouts who disclosed their names to be the present applicant, who allegedly was sitting on rear seat while the name of other accused was Sardar Khan Pathan. They were asked about valid license of the pistols allegedly recovered from their possession; they disclosed to be un-licensed one. For the escaping accused, they disclosed that he was Yar Muhammad Rajar. From their further body search Rs.500/- were recovered from the possession of present accused. The alleged pistol and bullets were sealed separately for Forensic Expert Opinion. The motorcycle, CD-70, black colored, model not known without registration number having Engine No.FML-329840 and Chassis No.FML-329840 was also found without registration papers. The complainant had also secured five empties from the scene of offence of 30-bore and 06 empties of SMG. Due to non-availability of private persons, the complainant by citing ASI Asif Ali Jatoi and P.C. Irfan Ali, joint mashirnama of recoveries and arrest was handed down in presence of the witnesses. Later the police party along with case property returned to PS where they lodged instant case on behalf of State. After usual investigation and completion of the formalities, the police have submitted the challan before the Court of law having jurisdiction on 01.05.2016. the applicant has preferred such application bearing No.518/2016 before learned trial Court and his request for bail was turned down vide order dated 04.05.2016.

3. Learned counsel for the applicant/ accused contended that so called police encounter had never taken place and the police by misusing their official capacity, worthy and the law have taken away the applicant from his home two days earlier from the alleged incident and demanded huge amount as an illegal gratification. The applicant being poor fellow could not pay same and simultaneously the co-accused who was also in custody prior to his arrest were made victims of the romer-sault taken by the police officer on account of non-payment of bribe. Per his averments, the applicant was fired at police station during his confinement and no such encounter as alleged had ever taken place; that many citizens were made crippled by the police of the District in various police stations of the city without legal justification. The alleged place of incident as shown is busy area where heavy transport and the people used to ply with and available round O'Clock but none from the public was associated to witness the offence. Amazingly both the accused had sustained firearm injury on their right legs in a sperm-movement, when, as alleged, the police allegedly was under coercion then how rightly fired upon the accused, particularly, at their particular part of bodies of both the accused really alarming and shows malice on the part of the police. In support of his contentions, he has placed reliance upon case law 2015 MLD 466, 2006 MLD 530, 2006 YLR 3022, 2012 YLR 178, 2014 YLR 2083, 2014 YLR 1573, 2009 PCr.LJ 679 and unreported order dated 22.04.2015 in Cr.B.A. No.S-1335/2014, order dated 06.07.2015 in Cr.B.A No.S-685/2015, order dated 09.04.2015 in Cr.B.A. No.S-199/ 2015 and order dated 10.12.2014 in Cr.B.A No.S-1216/2014.

4. On the other hand, learned D.D.P.P. appearing for the State has vehemently opposed the bail application on the ground that the accused was arrested along with un-licensed pistol and a motorcycle and while firing upon the police party was arrested in an injured condition, therefore, no case for bail is made out.

5. Heard arguments of both sides, perused record minutely and gone through the citations advanced (supra).

6. It was strange to note that only the accused had sustained fire shot injury on particular part of their body while none from the police or their vehicle had sustained even scratch on their part nor any belonging of the complainant party was damaged. The alleged weapon, although, shown to have recovered and were sealed on spot for Ballistic Expert but no such documents have been adduced by the prosecution whether they were sent to Ballistic Expert so as to show the weapons were functional and the empties secured from the scene of offence were fired from such weapon. As far as application of section 324, P.P.C. is concerned, the same was found ineffective as none from the complainant party received injury at the hands of accused, therefore, punishment of section 324, P.P.C., if, proved by the prosecution at the time of trial, punishment of more than seven years cannot be visualized and section 353, P.P.C. is bailable.

7. It is well settled principle of law, every accused would be presumed to be blue eyed boy of he law until and unless he may be found guilty of alleged charge and law cannot be stretched upon in favour of the prosecution, particularly, at bail stage.

8. In the circumstances, I am also fortified with the view of Honorable Supreme Court of Pakistan in case of 'Tarique Bashir and 4 others' vide PLD 1995 SC

34. The case of applicant does not exceed the limits of prohibition clause as contained under section 497(i), Cr.P.C. In view of above submissions and discussion whatever made hereinabove, the applicant has made out a good prima facie case for his release on bail and his case requires further inquiry within the meaning of section 497(2), Cr.P.C. Consequently, the application is allowed.

9. However, the observations made hereinabove are tentative in nature and may not influence learned trial Court while deciding the case on merits. The applicant was granted bail on furnishing solvent surety in the sum of Rs.1,00,000/- (Rupees one hundred thousand) and PR bond in the like amount, to the satisfaction of learned trial Court by my short order dated 02.09.2016 and these are the reasons for same. JK/D-20/Sindh Bail granted.