IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

LARKANA

Crl. Bail Appln. No. S- 334 of 2023.

Applicants:                1). Ali Asghar son of Ahmed Ali Panhwar.

2). Muhammad Ali son of Suhno Khan Shaikh,

Through Mr. Inam-u-Rehman Abro, Advocate.

Respondent:              The State, through Mr. Gulzar Ahmed Malano, Asstt. Prosecutor General.

Date of hearing:        10.07.2023.

Date of decision:      10.07.2023.

O R D E R

KHADIM HUSSAIN SOOMRO, J;- Through listed criminal bail application, above named applicants seek their admission to post-arrest bail in FIR bearing Crime No.73/2023, for offences punishable under Sections 402, 399, 324, 353, 148, 149 P.P.C registered with P.S, Ratodero. Their similar bail plea has already been declined by learned Additional Sessions Judge, Ratodero, vide order dated 01.06.2023, passed in Crl. Bail Appln.No.602/2023.

2.         Succinctly, the facts of the prosecution case as unfolded in the FIR lodged on 13.04.2023 by ASI Ali Raza Ghanghro with P.S Ratodero (District Larkana) are to the effect that, on a fateful day, he, alongwith his subordinate staff namely PC Aamir Ali, PC Kamran Ali left the police station, duly dressed and armed with official ammunitions in government vehicle driven by PC Sher Muhammad vide entry No.16, at about 2200 hours, for patrolling within their precinct and during patrolling when at about 2330 hours, they reached at Shikarpur bypass near Ghotia Curve, they saw and identified on the headlight of their vehicle accused namely Ali Asghar Panhwar, 2). Irshad Ali Shaikh, 3).Muhammad Ali Shaikh, 4).Gaji Khan alias Sajid Shaikh and one unknown culprit, if seen again, would be identified, duly armed with pistols, who were standing and keeping stones on the road with the intention to commit dacoity. The police party while alighting from their vehicle commanded them to surrender but they deterred them from discharging their lawful duty as public servants by making straight fires at them with the intention to commit their murder, which was retaliated by them in their defence, during the course whereof, one of the accused while raising cries informed his companions that he had received bullet shot injury on his leg at their hands. After five minutes of firing, the police party encircled and apprehended the accused, namely Ali Asghar Panhwar, with a pistol in injured condition, while the other accused, taking advantage of darkness, made their escape good towards the land. By citing PC Aamir Ali and PC Kamran Ali as mashirs, the captive on inquiry revealed his identity to be Ali Asghar Panhwar, and he was having fire shot injury on the calf of his right leg; he further affirmed that he had sustained such injury at the hands of his companions. The pistol with a magazine being unloaded was found empty, and his bodily search yielded two currency notes of Rs.100/- and two currency notes of Rs.50/-. The pistol on query was disclosed by the accused to be unlicensed, and he was referred for treatment through a constable after wrapping a cloth bandage over his wound, and such memo of arrest and recovery was prepared in the presence of the above-named mashirs on torch light. On return to the police station, the present case was registered against the accused on behalf of the State.

3.         Learned counsel for the applicants mainly contended that the applicants are innocent and have falsely been implicated in this case by the police; that no independent person has been cited as witness/mashir of arrest and recovery; that this is the case of ineffective firing, as none from the police party received any firearm injury or even any scratch; that in-fact applicant Ali Asghar was arrested and brought at the police station, where he was fired-at under so-called police term i.e. “half-fry”, and in order to save their skin and show their efficiency to their high-ups, the police have managed this false case against the applicants; that it is very astonishing that the fires made by the culprits did not hit to any member of police party but one of the accused sustained injury at the hands of his companions that too on his leg. Per learned defence counsel, this fact supports the defence plea that the accused was arrested and brought to the police station and then was fired at by the police. Learned counsel emphasized that there is no medical evidence to support the version of the police and that the applicants have no past criminal history. Learned counsel lastly submits that the case has already been challenged and the applicants are no more required for further investigation. He, therefore, prayed for a grant of bail to the applicants. 

4.         Conversely, learned A.P.G opposed the grant of bail to the applicants by contending that the applicants are nominated in the FIR with specific role of murderous assault upon the police party and one of them, namely, Ali Asghar has been arrested at the spot after an armed encounter with police in an injured condition and crime weapon has also been recovered from his possession, as such the applicants are not entitled for grant of bail.

5.         Heard arguments of learned counsel for the parties and perused the record.

6.         The careful perusal of the record entails that the alleged incident is said to have taken place from Shikarpur Bypass adjacent to Ghotia Curve, which is frequented by the traffic and public, yet no dweller or passerby therefrom was taken to witness the occurrence, which was in clear disregard provision of Section 103 Cr.PC. It was quite incredible and does not attract to the judicial mind that the encounter between the accused and police party lasted for about five minutes, yet it remained ineffective in all sense against the police party, nor had any bullet hit their official vehicle; therefore, the guilt of the applicants requires determination at trial. The applicants have been behind bars since the date of their arrest. The case has already been challenged, and there is no apprehension of tampering with the prosecution evidence. Moreover, applicant Ali Asghar has already been admitted to bail by this Court in an off-shoot case relating to Section 24 of Sindh Arms Act. In that situation, the applicants deserve the concession of bail on the point of further inquiry, as contemplated by Sub Section (2) of Section 497 Cr.P.C.

7.         In view of the facts and reasons discussed above, it is concluded safely that learned counsel for the applicants has made out a case for a grant of bail to the applicants. Consequently, the instant bail application is allowed, and the applicants are admitted to bail, subject to their furnishing solvent surety in the sum of Rs.50,000/- (Fifty thousand rupees) each and P.R bonds in the like amount to the satisfaction of the learned trial Court.

8.         Needless to mention that the observation recorded hereinabove being tentative in nature would not prejudice the case of either party at trial.

                                JUDGE

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