2010 PLP 1793 (MLD)

HAFIZ ABDUL REHMAN ANSARI, J.

Through this petition, the petitioner, Munir Hussain son of Muhammad Nawaz seeks post-arrest bail in case F.I.R. No. 22 of 2009, dated 22-1-2009 registered at Police Station Tulamba, District Khanewal, under sections, 324, 353, 186, 34, P.P.C. 13/20/65 Arms Ordinance.

2. Brief facts as narrated in the F.I.R. are that F.I.R. was registered at the complaint of Zulifqar Ali, A.S.-I Police Station Tulimba and stated that on 10-08 at night Muhammad Ashraf 253/HC Muharrar informed me by telephone that in near Gulshan Noor Town Mohallah Kot Islam three unknown armed persons were rounded on Motorcycle No. 125 immediately I reached at the spot on which I along with other officials immediately approached the Gulshan Noor Town. Muhammad Yasin son of Muhammad Sharif caste Chohan and Watchman Fouji Muhammad Hanif son of Siraj Din caste Rajputt and other members of locality were present at the spot. Muhammad Yasin told me that three armed unknown persons on motorcycle 125 were watch for occurrence, after that I tried to trace the unknown persons at that time when we reached the Canal 8/8R that time three accused persons were coming on the motorcycle, I tried to stop them but the accused persons started firing on us, we and locality members of the occurrence also fired as a self defence but due to high speed of motorcycle one of the co-accused who fell down Munir Hussain son of Muhammad. Nawaz, who was arrested and one of the accused, namely, Rab Nawaz son of Muhammad Sharif r/o Basti Gogewali Ward No.8, Jang Sherhar was injured by the police firing and murdered at the spot and one co-accused Nadeem Iqbal caste Shau escaped from the place of occurrence.

3. Petitioner applied for post-arrest bail before the learned Additional Sessions Judge, Mian Channu, who vide order, dated 19-4-2009 dismissed the same.

4. Petitioner's counsel submits that petitioner is innocent and has been implicated in this case. falsely; that whole story of the F.I.R. is concocted and fabricated and no such occurrence has taken place; that no recovery has been effected from the petitioners and if any recovery is shown that is planted by the Investigating Officer; further submits that as per contents of F.I.R. no such offence under section 325, P.P.C. is made out; that petitioner is not required for the purpose of investigation; that the petitioner was empty handed and question of commission of offence under section 324, P.P.C. does not arise; that the joint recovery of pistol was made which has no evidentiary value; that challan has been submitted in the Court on 5-3-2009; that the offence does not fall within the prohibitory clause of section 497, Cr.P.C.; that petitioner is no more required for any recoveries or investigation when accused is empty handed section 324 is not attracted; learned counsel has made reliance on the case reported as Nihal v. State (2007 PCr.LJ 672), therefore, the petitioner is entitled for the concession of bail.

5. Learned Deputy District Public Prosecutor vehemently opposes the grant of bail on the ground that it was a encounter, one of the accused, namely, Rab Nawaz was killed at the spot, pistol was lying at the spot near the dead-body and an empty was recovered from the spot; Rab Nawaz was killed at the spot and present petitioner also participated in the occurrence and was present at the spot; that he was caught red handed; further submits that he was a record holder and as many as five F.I.Rs. were got registered against the petitioner, therefore, he is not entitled to the concession of bail.

6. I have heard the learned counsel for the parties at length and perused the record.

7. The contention of Deputy District Public Officer that joint recovery of pistol was made, the same has no evidentiary value, recovery should be specific from whom it is made. One weapon of offence cannot be recovered from more than one person at the same time. In the whole story of the F.I.R. petitioner is not shown to have made fire of pistol and he is not nominated in the F.I.R. It is very strange encounter of police not a single injury is caused to the police officials. On the other hand, co-accused Rab Nawaz was killed at the spot and his other co-accused succeeded to run away. Challan of the case is submitted in the Court. Petitioner is no more required by the police for any purpose or investigation. Petitioner cannot be kept behind the bars as punishment. Co-accused Rab Nawaz killed and the other co-accused run away from the place of occurrence. Petitioner was empty-handed at the time of occurrence.

8. Resultantly, this petition is accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 with one surety in the like amount to the satisfaction of the learned trial Court. However, the observations made above are of tentative nature, will not prejudice the case of either side during trial. H.B.T./M-747/L Bail granted.