IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Crl. B.A. No.D-138 of 2017
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DATE OF HEARING |
ORDER WITH SIGNATURE OF JUDGE |
For hearing.
Present:
Mr. Justice Syed Hassan Azhar Rizvi
Mr. Justice Rasheed Ahmed Soomro.
Mr. Qurban Ali Malano Advocate for applicants.
Mr. Abdul Rehman Kolachi, Assistant Prosecutor General a/w Inspector Abdul Munium Larik of P.S Naushehro Feroze/I.O. of the case.
Date of hearing: 20-04-2017
O R D E R
RASHEED AHMED SOOMRO J., By this order, we intend to dispose of bail application filed by applicants Kamil Khan, Ali Akbar, Faheem and Gul Hassan against order dated 27.02.2017, passed by the learned Judge, ATC, Naushehro Feroze in Crime No.348/2016, under Sections 324, 353, 148 and 149 PPC, r/w Sections 6/7 ATA, registered at Police Station Moro, whereby their earlier bail application was declined.
2. Relevant facts spelt out from the F.I.R. are that on 29.12.2016 at 0145 hours, police party during patrolling reached at Gachero road, where complainant received spy information that absconder accused of crime No. 347 of 2016, namely, Kamil Zardari is available at his otaq alongwith his companions, duly armed with weapons. On receipt of such information, complainant party reached at the pointed out place, where on the light of police mobile, saw 8/9 accused persons and identified them as 1. Kamil with rifle, 2. Aamir with repeater 3. Faheem with DBBL gun, 4. Gul Hassan with pistol, 5. Shahid alias Kakori 6. Ali Akbar with rifles and guns. Complainant informing them about police directed them to surrender, but accused persons attacked upon police by making straight firing and such encounter lasted for 05 minutes and police party succeeded to arrest accused persons, namely, Kamil, Faheem and Ali Akbar, while remaining accused persons succeeded to make their escape good. Complainant party also recovered unlicensed weapons, bullets and wine from the possession of accused, for which separate FIRs have been lodged.
3. It is argued by learned Counsel for applicants that applicants are innocent and have been falsely implicated in the alleged offence which occurred during night hours, hence possibility of identification of accused on the light of vehicle has no reason to believe. He further contended that though the encounter remained continued for 05 minutes, but none from the either side sustained any injury though the accused were armed with lethal weapons nor any scratch has been caused to the police vehicle. He further contended that there are general allegations against all the accused persons and no specific overt act has been assigned to the applicants.
4. While controverting the above submissions, learned APG contended that applicants are involved in series of cases. He further contended that names of applicants are mentioned in F.I.R. The accused persons fired upon police party to commit their murder, as such applicants are not entitled for bail.
5. We have heard learned Counsel for the parties and scanned the material available on record, which emanate that the alleged incident occurred during night hours, as such the question of identification of accused persons with specific ammunition on the light of police vehicle requires serious consideration. Indeed, no specific role has been assigned to the present applicants and allegations leveled against them are of general in nature. Admittedly, it is the case of ineffective firing alleged to have continued for about 05 minutes, but nobody from the complainant party has received a single scratch though a large number of accused persons allegedly made indiscriminate firing upon the complainant party. 6. So far as contention of learned A.P.G that applicants are involved in series of cases, on that point also, the Hon’ble Supreme Court of Pakistan in case of Mst. Fahmida v. The State (1997 SCMR 947) has held as under:
……….In our view, an accused should not be denied the concession of bail on the ground that some cases are pending against him. It may be added that in this case out of the 6 cases alleged to have been registered against her, the petitioner has been acquitted in 3 cases and in the other 3 cases she is on bail”.
7. As per record, it is also an admitted position that applicants have not been convicted in any other case. As per record after completion of investigation challan has been submitted and the applicants are no more required for further investigation and since their arrest they are behind the bar. There is no apprehension of tampering with the prosecution evidence as all the PWs are police officials. It is well settled that concession of bail could not be withheld for the purpose of punishment and basic rule is bail and not jail. Considering the above circumstances, we are of the view that no useful purpose will be served if applicants are declined from bail.
8. Whenever reasonable doubt arises with regard to the participation of accused in the crime or about the truth of the prosecution case, the accused cannot be deprived of benefit of bail and in such a situation it would be better to keep the accused on bail then in the jail during the trial. Reliance is placed on the case of Hamid Ali v. The State (2009 SCMR 734). Relevant para is reproduced as under:-
“We are of the opinion that no useful purpose will be served by keeping the petitioner in custody for an indefinite period, because it is not known that how much time will be consumed by the prosecution in completion of the trial.”
9. Considering the facts and circumstances referred supra, applicants in our view prima facie have succeeded to make out their case for grant of bail on the ground of further inquiry, as envisaged under section 497(2) Cr.P.C. Resultantly, by our short order dated 20.04.2017, applicants Kamil Khan, Ali Akbar, Faheem and Gul Hassan were enlarged on post arrest bail on furnishing their solvent surety in the sum Rs.2,00,000/- (Rupees Two lacs) each and P.R. bond in the like amount to the satisfaction of the learned trial Court. These are the reasons in support of our short order dated 20.04.2017.
10. Needless to mention here that nothing herein shall affect the determination of the facts at the trial or influence the trial Court in reaching its decision on the merits of the case and above observations are tentative in nature.
Bail application stands disposed of in the above manner.
JUDGE
JUDGE