IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Crl. Bail Appln. No. S- 731 of 2023.
Applicant: Saddam Hussain Mirani through Mr. Faiz Muhammad Larik, Advocate.
Respondent: The State, through Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
Date of hearing: 26.01.2023.
Date of order: 26.01.2023.
Date of reasons: 01.02.2024.
ORDER
Muhammad Saleem Jessar, J: Through this bail application, applicant Saddam Hussain Mirani seeks post arrest bail in a case registered against him vide Crime No. 217 of 2023 at P.S Kashmore under Sections 401, 353, 324, 34 P.P.C., after his bail application was declined by learned trial Court vide Order dated 29.11.2023. The case has been challaned, which is now pending for trial before the Court of learned Additional Sessions Jduge, Kashmore vide Sessions Case No. 129 of 2023, re; State v. Rashid and others.
2. Complainant Head Constable Shah Ghazi of P.S Kashmore lodged F.I.R on behalf of the State against applicant and others, in the following wording:
“It is complaint on behalf of the State that today, I alongwith other staff, namely, PC Kashif Ali, PC Muhammad Hassan, PC Akhlaque Ahmed duly dressed and armed with official arms and ammunition having investigation bag left police station in official vehicle No. SP- 556, with driver PC Ali Gohar vide roznamcha entry No.26, 1800 hours, dated 18.10.2023 for patrolling within jurisdiction and while patrolling different placed when reached Naich Petrol pump, where we received information through spy that proclaimed offender Rashid son of Bilawal Khoso resident of village Niaz Ahmed Khoso Taluka Kandhkot in crime No.162/2023 of P.S Kashmore under Section 353, 324 P.P.C alongwith his companions have been standing on link road Malak diversion with intention to commit some offence. On receipt of such information, I apprised the other staff about information and proceeded towards pointed place and at 1900 hours reached link road Malak diversion, where we saw and identified in the light of vehicle the accused Rashid son of Bilawal Khoso resident of village Niaz Ahmed Khoso, 2. Shahid son of Khorkani Mazari resident of RD-82, 3. Saddam Hussain son of Abdul Razzak Mirani resident of Zero Pull, who on seeing us (police party) took out pistols from their folds and started direct firing upon us with intention to commit murder; we stopped our vehicle; got down and while taking shelter by the road side made firing in our defence; the firing continued for about 7/8 minutes and during firing one of the culprits sustained injury at the hands of his companion and he while raising cry fell down; then rest of the accused while taking advantage of darkness succeeded in escaping away along with pistols. We moved ahead and reached over fallen down accused. No private mashir was available, as such PC Kashif Ali and PC Muhammad Hassan were nominated as mashirs and the accused was asked about his name and addressed, who disclosed his name to be Rashid son of Bilawal Khoso, resident of village Niaz Ahmed Khoso; we saw that he was having fire injury over right knee; he was bleeding and a pistol was lying on the ground by his side, which was taken into police possession; it was of 30-bore with rubbed number alongwith magazine and on unloading it was found empty. The accused was asked about license of T.T pistol, who disclosed it to be unlicensed. The pistol was sealed on the spot. The injured accused Rashid Khoso was arrested for offences punishable under Sections 401, 353, 324, 34 P.P.C and 24 SAA; he was also arrested in aforesaid case. Such mashirnama was prepared in the light of vehicle. The injured accused Rashid Khoso and recovered pistol were brought to Taluka Hospital Kashmore, where we admitted him for treatment and issued such letter and left above staff to guard the accused and I along with driver of mobile came at P.S, where this F.I.R is being registered agaisnt injured accused Rashid Khoso and escaped away accused persons on behalf of the State. I have fired 10 rounds from my official SMG, while rest of the staff would disclose the details of the ammunition consumed by them in their statements. A separate case for recovery of unlicensed T.T pistol would be registered against injured accused Rashid Khoso.”
3. Learned counsel for the applicant contended that, the F.I.R is delayed for one and half hour, though distance between place of vardat and police station is only 6/7 kilometers; that all the prosecution witnesses are police personnel of the same police station and are subordinates to the complainant and no private/ independent person has been cited as witness or mashir of the alleged incident, though the police party received information about presence of culprits well in advance, even then they did not associate any independent person. He further contended that the alleged incident is alleged to have taken place in dark hours of night and source of identifying the accused is disclosed as headlight of vehicle, which is very weak type of source and cannot be relied upon and mistaken of identity cannot be ruled out. Per learned counsel, none from police party has received injury or even any scratch, therefore, application of Section 324 P.P.C would be determined at time of trial and it is very strange and hard to believe that the parties were at very close range and fired upon each other face to face for about 7/8 minutes with deadly weapons, but none from police party received any injury or even scratch. He further added that, ingredients of Section 401 P.P.C. do not attract in the present case, as it is surprising to note that how the Police party presumed that the accused were gathered at place of vardat with intention to commit any offence of dacoity etc. and it is only word and claim of the complainant that the accused persons were available on spot for committing some offence. Per learned counsel mere gathering of some armed persons at any place do not give rise to any presumption that they had assembled there to commit dacoity and it do not constitute an offence punishable under section 401 P.P.C. and that bare reading of F.I.R does not show that the applicant/ accused belong to gang of persons who are habitually committing theft.
4. Conversely, learned D.P.G. appearing for State opposed grant of application on the ground that the applicant has been nominated in the promptly lodge F.I.R with specific role of making straight firing upon police party thereby deterring them from discharging of their official duties.
5. Perusal of record reflects that all the witnesses including mashirs are the police officials and no independent person from vicinity has been cited as witness or mashir, though the place of alleged incident is said to be link-road. No doubt, the evidence of the police officials is as good as other witnesses, but when the whole case rests upon sole evidence of police officials, their evidence requires deep scrutiny at trial. Per prosecution case, the accused persons fired at police party for about 7/8 minutes straightly from close range, but during such face to face firing which lasted for 7/8 minutes, no body from police party received any scratch; this is very surprising, astonishing and does not appeal to a prudent mind, therefore, the case of the applicant on this score alone requires further probe as contemplated by subsection (2) of Section 497 Cr.P.C. More-so, prima-facie the ingredients of Section 401 P.P.C., do not attract to this case, as from bare reading of the F.I.R there appears no any material, which may suggest that the accused persons had made preparation and or gathered at spot for committing some offence. The applicant has been in jail since date of his arrest i.e. 11.11.2023 and challan of the case has been filed; as such he is no more required for the purpose of investigation. In these circumstances continuous custody of the applicant in jail is not likely to serve any beneficial purpose at this juncture. Furthermore, since all the prosecution witnesses are police officials, as such, there is also no likelihood of tampering with prosecution evidence by the applicant, if he is released on bail.
6. A tentative assessment of all above factors and the material available on record makes the case of applicant one of further enquiry in terms of subsection (2) of Section 497 Cr.P.C. entitling him to grant of discretionary relief of bail to him. Accordingly, instant bail application was allowed vide short order dated 26.01.2024, and applicant was admitted to bail upon his furnishing a solvent surety in the sum of Rs.50,000/- (Fifty thousand rupees) and P.R bond in the like amount to the satisfaction of trial Court and these are the reasons for said short order.
7. Before parting with this order, it is made clear that, observations made herein above are tentative in nature and would not prejudice case of either party at trial.
Judge
Ansari