IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Criminal Bail Application No.S-705 of 2014
Date of hearing : 10.11.2015
Mr. Habibur Rehman Shaikh Advocate for applicants.
Mr. Syed Jaffar Ali Shah Advocate for complainant.
Mr. Sardar Ali Shah APG.
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ORDER
SHAHNAWAZ TARIQ,J:- Through captioned post arrest bail application, applicants Sajid alias Sajjan and Muhammad Usman alias Dado have impugned order dated 28.08.2014, passed by the Court of learned Ist Additional Sessions Judge, Khairpur, whereby their earlier bail application was declined.
2. Necessary facts pertaining to instant case are that complainant Hidayatullah lodged F.I.R. that accused Muhammad Usman alongwith one unidentified culprit attempted to snatch his motorcycle from him, but culprits fled away towards katcha path, however in the meantime police mobile reached there and they all chased culprits on foot. Complainant informed his co-villagers through cell-phone and they duly armed also accompanied with complainant party. Subsequently, accused Sajid, Sabir and Sadiq duly armed came there and accused persons rushed towards the village of complainant and made firing upon the police party and during encounter Sabir and Sadiq were murdered on the spot, whereas Muhammad Usman was apprehended in the injured condition but accused Sajid succeeded to flee away, hence instant FIR.
3. Learned counsel for the applicants contended that applicants are innocent and have been falsely implicated in the instant case by complainant as applicants were called by complainant party for a Faisla and during said proceedings, complainant party committed murder of both the deceased and caused injuries to applicant Muhammad Usman; that police has not lodged FIR regarding alleged encounter held between the culprits and police, but complainant being a private person in his personal capacity, has lodged instant FIR; that complainant examined each and every injury of both the deceased and injured and also checked all the weapons recovered from the spot which were smelling; that FIR has been lodged in shape of memo of inspection of dead-bodies and inspection of wardat, which was not mandate of complainant; that applicant Usman was arrested on 07.08.2014, while applicant Sajid was apprehended on 17.08.2014, and since then they are behind the bars, but prosecution has failed to examine a single witness to prove its case before learned trial Court; that during alleged encounter none from police party sustained injury nor any damage was caused to police mobiles, hence the offence under Section 324, PPC is not made out from the contents of FIR, whereas offence under Section 393 PPC is punishable upto 07 years and offence under Section 353, PPC is bailable and punishable upto 02 years; that both applicants are not previously convicted. Learned counsel has relied on 2014 MLD 414, 2014 MLD 11 and 2014 P.Cr.L.J 1106.
4. While controverting above submissions, learned APG contended that applicant Usman was apprehended on the spot in injured condition after the encounter held between the culprits and police, in which two culprits were murdered at the spot. Learned APG candidly submitted that applicant Sajid was neither present at the spot when co-accused had attempted to snatch motorcycle from complainant nor was arrested on the spot after encounter.
5. Learned counsel for complainant also supported the arguments advanced by learned APG and contended that both the applicants are dangerous criminals and involved in many cases but they are absconding from their cases; however no detail of such cases, has been placed before this Court in support of his contentions.
6. Perusal of material available on record and consideration of arguments advanced by the parties emanate that admittedly accused Sajid was not apprehended by the police at the spot after alleged encounter and even he had not participated in the alleged offence for attempt to snatch the motorcycle from complainant, therefore, his involvement requires serious consideration.
7. Indeed, during the alleged encounter neither any police person sustained any bullet injury nor any scratch was caused to police mobile, as such there remains a case of ineffective firing against present applicants, hence the offence punishable under Section 324, PPC requires further inquiry and it is for learned trial Court to thresh out the truth at trial after recording evidence of P.Ws, while offence under Section 393 PPC is punishable upto 07 years and it is well settled that while considering the question of bail, the Court has to consider the minimum aspect of the sentence provided for the offence in the schedule. Conversely, during the alleged encounter Sabir and Sadiq were killed, and applicant Muhammad Usman was arrested in injured condition and one un-licensed empty TT pistol was not recovered from his specific possession but same was recovered from the place of wardat near from him.
8. Furthermore, applicants are behind the bars for the period more than 14 months but prosecution has failed to examine a single witness to substantiate the charge against applicants. After conclusion of investigation, Challan has also been submitted before the trial Court, hence they are no more required further and further detention of applicants will not serve any useful purpose. Moreover, there is no apprehension of tampering with prosecution evidence as main witnesses are police officials, and even no one can be detained for an indefinite period.
9. Considering the above circumstances, I am of the considered view that applicants have succeeded to make out a case for grant of bail on the ground of further enquiry as envisaged under Section 497(2), Cr.P.C. Consequently, applicants are admitted to post arrest bail subject to their furnishing solvent surety in the sum of Rs.100,000/- each and P.R. Bond in the like amount to the satisfaction of learned trial Court.
10. The observations made above are tentative in nature and learned trial Court shall decide the case strictly on merits.
JUDGE
Akber.