ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.
Cr. Bail Appln. No: 13 of 2010.
Date Order with signature of judge.
1. For orders on office objection as flag A.
2. For orders on M.A No. 534/2010.
3. for Hearing.
22.3.2010.
Mr. Aftab Ahmed Gorar, advocate holding brief for Mr.Ghulam Saghir Baloch, advocate for the applicants.
Mr. Naimatullah Bhurgri, State Counsel.
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IMAM BUX BALOCH, J.:- The applicants are facing before the Court of learned Sessions Judge, Kamber, Shahdadkot in Crime No.135 of 2009 of P.W Wagan registered for an offence punishable U/S 17(1) H.O, 353, 324, 337-H(2) PPC. The applicants, having failed to obtain the post arrest bail from the trial Court, approached this Court for post arrest bail.
Briefly the facts of the prosecution case, are that police party headed by the complainant SIP Wahid Bux Lashari while patrolling through various places at about 2100 hours they reached near abandoned sheller of Muhkamuddin, when a passenger wagon was ahead of them, on the headlight of mobile vehicle they saw small stones lying on the road and 7 armed men emerged from both the sides of road having different weapons viz: pistol, K.K, repeater and guns who signaled the wagon to stop and also fired in the air, on seeing the police vehicle, accused with intention to commit murder fired upon police party, police also got down and encounter took place. During the firing the Driver of Passenger Wagon took chance and drove it away towards Nasirabad. Due to darkness, the police could not note the number of the wagon, however, PC-Ali Akbar Lashari identified two accused persons namely Imtiaz alias Girri son of Allah Jurio Mugheri R/O Wagan armed with K.K and Jumo son of Aslam Mugheri R/O Village Kaim Khan armed with gun. Latter the encounter lasted for 10 minutes and then on consuming the ammunition, accused persons armed with gun, country made pistol and repeater, surrendered themselves while raising their hands up. Police party apprehend them while rest of accused made their escape good by taking advantage of darkness. Thereafter while associating ASI Nazir Ahmed Kandhro and PC1011 Mohammad Ameen Wagan as mashirs, gun was recovered from the accused armed with gun and he was asked about his identity who disclosed his name as Altaf Mugheri and on checking the gun was found empty for which the accused disclosed the same being unlicensed, thereafter country made pistol was recovered from the accused armed with country made pistol and he was asked about his identity who disclosed his name as Wazir Mugheri and on checking the country made pistol was found empty for which the accused disclosed the same being unlicensed and lastly repeater was recovered from the accused armed with repeater and he was asked about his identity who disclosed his name as Abdul Hameed Mugheri and on checking the said repeater was found empty for which the accused disclosed the same being unlicensed. Subsequently, from the accused apprehended the enquiry was made regarding the accused who escaped on which they disclosed their names that one accused armed with K.K was Imtiaz alias Girri Mugheri, 2. accused armed with gun was Jumo Mugheri and regarding two unidentified accused they disclosed their names that they were friends of accused Imtiaz alias Girri and Jumo Mugheri but they do not know their names and address. Thereafter 20 empty cartridges were found from the place of wardat and then after preparing necessary mashirnama, the accused arrested alongwith their respective weapons recovered were brought at P.S and such F.I.R was lodged on behalf of the State.
Mr. Aftab Ahmed Gorar, holding brief for Mr.Ghulam Saghir Baloch, advocate for the applicants, states that he is ready to proceed with the matter with permission of learned counsel. Mr.Gorar contended that the alleged encounter has taken place for 10 minutes but non from either side received any injury. He further contended that no robbery or dacoity has taken place. He further contended that the alleged weapons were recovered from the possession of present applicants but no empty was found from the barrel of the weapons. He contended that the only general allegations that all the accused collectively fired at the police party ineffectively. In these circumstances, he argued that the case of the applicant false within the purview of further enquiry.
Learned State Counsel when confronted with the above position, concedes to the grant of bail.
Heaving heard learned counsel for the parties and examined the material collected during investigation, it is admitted position, that allegedly the firing was exchanged between police and accused persons, lasted for 10 minutes but none from either side received even a single scratch nor even a single bullet hit to the police vehicle at the time of incident and no robbery has taken place. Besides, no specific role is attributed to any of the present applicants, hence the guilt of each accused is to be determined at the trial. All these factors suggest that the prosecution case against the present applicants calls for further inquiry as contemplated U/S 497(ii) Cr.P.C.
Reference can be had, in the cases reported as Mour v. The State (2008 P.Cr.L.J 1277) and Ashfaq Kareem alias Khalil-ur-Rehman v. The State (2009 P.Cr.L.J 679), wherein in the similar circumstances, it was alleged by the prosecution in those cases that accused fired at the police party and they were arrested at the spot alongwith their respective weapons but not a single injury was received by either side, nor alleged robbery was committed and also not a single bullet was hit to police mobile. In such circumstances, the prosecution case was found one of further inquiry and bail was granted.
In these circumstances, I have come to the conclusion that the applicants have made out a case for grant of bail. Consequently, I grant bail to the applicants. They shall be released 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 trial Court.
JUDGE