IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Cr.Bail Appln. No.S- 548/2020& 549/2020.
Applicant: Nakeef son of Suhrab Nindwani,Through Mr.Habibullah G. Ghouri, Advocate,
State: Through Mr. Muhammad Noonari, Deputy Prosecutor General.
Date of hearing: 23-11-2020.
Date of order: 26-11-2020.
O R D E R
Zulfiqar Ali Sangi, J.- Applicant Nakeef Nindwaniseekshis post arrest bailin F.I.R No.38/2020, for offenceunder sections 324, 353,402,34 PPC and FIR No.39/2020 for offence under section 23(i) A Sindh Arms Act, 2013, registered at Police Station Ghulam Sarwer Sarki. Since, in both the applications, the applicant is same and both the cases are outcome of single transaction, therefore, by this single order I will disposed of these two bail applications.
2. The brief facts of the case are that on 25.9.2020, A.S.I- Qadir Bux Dahani along with his subordinate staff was on patrolling, he received spy information that wanted accused (applicant Nakeef) in Crime No.37/2020 under section 392 PPC was available near link road Mari Jaffer. After receiving such information police party proceeded to the pointed place, where they saw accused Nakeef, Hakim and one unknown culprit armed with TT pistol who were standing with intention to commit some offence. It is further alleged that on seeing police party, all the accused started straight firing upon them, with intention to commit their murder.Police party also fired in their self defence, after encounter for 10 minutes accused raised cries that he had sustained injury at the hands of his companions.Thereafter, complainant apprehended present applicant Nakeef in injured condition along with an unlicensed TT pistol so also recovered one motorcycle while remaining accused succeeded to flee away. After preparing memo of arrest and recovery and completing legal formalities, complainant came at police station along with injured accused where abovetwo separate FIRs were lodged against the applicant.
3. Learned counsel for the applicant submitted that applicant is innocent and involved by the police with malafide intention; that the applicant is not previous convict; that no body from police party received any injury nor police mobile received any scratch. He further submitted that due to injury applicant is unable to move and need his care and proper treatment as he sustained fracture on his leg. He further submitted that applicant has been granted bail in Crime No.59/2020, 63/2020 and 66/2020, which cases are of similar nature.Lastly, he prayed that bail applications may be allowed and applicant may be enlarged on bail.In support of his contentions he relied upon the case ofLAL BUX versus THE STATE (2008 YLR 926), ALTAF HUSSAIN versus THE STATE (2008 YLR 102), ASIF ALI ZANGEJO JATOI versus The STATE (2017 MLD 46), RAB NAWAZ versus THE STATE (1990 SCMR 1085), JALEEL AHMED PITAFI and others versus The STATE (2017 P.Cr.L.J 742), MUHAMMAD SHAHID versus THE STATE (2008 YLR 2544), ABDUL MANNAN BHUTTO versus THE STATE (2010 MLD 927).
4. Learned D.P.G for the State contended that name of the applicant is mentioned in the FIR with specific role that he fired from his pistol upon police party and during encounter he sustained fire arm injuries; that pistol and motorcycle was recovered from the possession of present applicant; that the recovered empties were matched with the recovered pistol and further submits that in these circumstances, applicant is not entitle for grant of bail.
5. I have heard learned counsel for the parties and perused the material available on the record with their able assistance.
6. As per FIR police officials were at very close distance and no body from the police personnel received any injury; only the applicant has received injuries. It wasallegedin the FIR that the same injuries were received by applicant from the hands of his companions, this aspect of the case clearly shows that the applicant has not received the firearm injuries from the hands of police though he was at close distance; if this fact is believed then it can easily be said that this case is of ineffective firing.
7. Perusal of final medical report reflects that applicant sustained two firearm injuries on the lower part of his leg. There is no criminal record to show that the applicant was previously convicted in any criminal case. Admittedly, investigation has been completed and applicant is no more required for further investigation, therefore, his further detention will not serve any useful purpose. Moreover, applicant is behind the bars since his arrest but prosecution has failed to examine a single witness to substantiate the charge against the applicant. It is significant to mention that all the witnesses are police officials and it was not difficult for the prosecution to procure their attendance. There is no apprehension of tampering with the evidence as all PWs are police officials.
8. The offence under section 353, P.P.C. is bailable and punishable for 2 years or fine, whereas the punishment provided for section 402 PPC is up to seven years and fine and the same does not fall within the prohibitory clause of section 497 (1) Cr.P.C. However to ascertain the offence for attempt to commit murder of the police officials (S.324 P.P.C) and bullet injuries sustained by the accused on the lower part of his leg, requires serious consideration and further probe as none of the police personnel sustained any injury, and it is for the learned trial Court to thresh out the truth after recording the evidence being adduced by the prosecution and defence during trial.
9. The accused could not be deprived from the concession of bail merely on the ground that he sustained injuries during the alleged encounter with police where no police personnel sustained any injuries being availableat close distance. To deprive a person of his freedom is most serious. It is judiciously recognized that unfortunately there is a tendency to involve the innocents with a guilty. Once an innocent is put under arrest, then he has to remain in jail for considerable time. Normally it takes some years to conclude the trial. Ultimate conviction and incarceration of a guilty person can repair the wrong caused by the mistaken relief of interim bail granted to him but damage to an innocent person caused by arresting him, though ultimately acquitted, would be always beyond repair. So whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth/probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail. In such a situation, it would be better to keep an accused person on bail then in the jail, during the trial. Freedom of an individual is a precious right. Where story of prosecution does not appear to be probable, bail may be granted so that further inquiry may be made into guilt of the accused.
10. The recovery of motorcycle and the pistol was not made from the physical possession of the applicant, it is alleged in the FIR that at the time of search nothing was recovered from the applicant, however, it is alleged that pistol was lying near to the applicant. Police arrived at the place of incidentfor arresting the applicant on information but no private/independent person was associatedto witness the arrest and recovery which too create some doubt in the story as setup by the prosecution in the FIR.
11. It is a well-settled principle of law that deeper appreciation of evidence is not permissible at the stage of bail and the material is to be assessed attentively. From the tentative assessment of material, available on record as has been discussed above the applicant make out his case for further inquiry entitling him to the benefit of bail, Resultantly these applications are allowed and bail is granted to the applicant subject to his furnishing solvent surety in the sum of Rs. 100000/= (one lac) in each case and the PR bond in the like amount to the satisfaction of the trail court.
12. The observations made hereinabove are tentative in nature only for the purpose of deciding the instant bail applications, which shall not in any manner influence the learned Trial Court at the time of final decision of the subject cases.
J U D G E