ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Bail Appln. No.618 of 2010.

DATE

OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

1. For orders on office objection Flag ‘A’

2. For Hearing.

10.01.2011.

Mr. Aijaz Ali Shah advocate for applicants.

Mr. Nisar Ahmed G. Abro, State Counsel.

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Being aggrieved and dissatisfied by the order dated 16.01.2010, passed by the learned 2^nd Additional Sessions Judge, Shikarpur in Crl. Bail Appln. No.1110 of 2010, whereby bail was declined to the present applicants. The applicants have approached this Court for seeking bail.

Brief facts for the purpose of disposal of instant bail application as stated in the FIR are that complainant SIP/SHO Nisar Alam Abro, lodged FIR with PS Jamalpur on 10.09.2010 at 0715 hours on behalf of the State alleging therein that he was available at PS Gaheja, where he received spy information that accused nominated for reward namely Gulshan S/o Muhammad Usman by caste Jamali along with other armed persons were available at Otaq, situated in village Mithan Khan Jamali. After that he conveyed the message to high officers and asked them to send other staff for help. As per orders of SPO Madeji, ASI Zainul Aabidin of PS Amrot along with staff by official vehicle and HC Mehboob Ali Jeho of PS Madeji along with staff by official vehicle, came to PS Gaheja. He then along with his sub ordinate staff namely ASI Ghulam Rasool Hakro, HC Abdul Haq, PC Sikandar Ali, PC Shafi Muhammad, PC Mumtaz Ali, PC Muhammad Ali, PC Mushtaque Hussain, PC Abdul Razzak, PC Qaimuddin, PC Bakhtullah, PC Nawab Ali and PC Zahid Hussain left PS by official vehicle under station diary No.33 along with other police staff to the pointed place and came there at 0615 hours and saw five armed persons sitting in the Otaq. They stopped vehicles and got down from vehicles. The police constable Mumtaz Ali identified accused persons to be Gulshan son of Muhammad Usman armed with Klashnikov, Zafarrullah son of Suhib Ali, Liaquat son of Dost Ali armed with guns, Imamuddin son of Muhammad Sulleman armed with TT Pistol, Saadullah son of Muhib Ali armed with rifle all by caste Jamali R/o village Mithan Khan Jamali. He introduced as to be police and asked accused to surrender but accused fired from their weapons at police party. Police also fired in the defence. An encounter lasted for half an hour. Accused nominated for reward namely Gulshan Jamali surrendered while throwing his Klashnikov. Rest of accused ran away taking advantage of narrow streets. In the meantime 20/22 accused having hatchets and lathies came out from different houses and complainant identified accused Muhammad Usman, Mohtebar who had hatchets, Muneer, Riaz, Rehmatullah, Bakhat Ali, Fazal, Din Muhammad, Hadi Bux, Abdul Wahid, all by caste Jamali who had lathies and 10/12 unidentified accused persons having lathies. He saw them very well and will identify if seen again. All attacked upon police party. Accused Muhammad Usman caused lathi blows to complainant on his head and other parts of body. Accused Bakht Ali caused lathi blows to HC Abdullah. All accused got escaped apprehended accused Gulshan from custody of complainant party and then taking advantage of crowd of other villagers and narrow streets of village succeeded to escape away. Complainant found himself, PC Mumtaz Ali and HC Abdul Ghani as injured and there was bleeding. He came back to PS Jamalpur and lodged such report.

It is inter alia contended by the learned counsel for the applicants that the present applicants are innocent and have been falsely implicated in the instant crime. Per learned counsel all the offences as mentioned in the FIR are bailable except alleged offence under section 324 PPC, which is not attracted at all on the facts and circumstances of this case. Learned counsel submitted that no firearm injury has been inflicted to any police officials, whereas other injuries, as per Medicolegal Officer Report, are Shajjah-e-Khafifah and Jurh Ghayr Jaifah Damiah. Learned counsel further submitted that admittedly the injured police persons approached the MLO on the next date of the alleged incidence, whereas the injuries have been mentioned as fresh in the MLO report. Learned counsel further submitted that as per memo of wardat only five empty shells have been shown as recovery, whereas it has been alleged that there was exchange of cross firing between the applicants/accused and police party, whereas no one has received any firearm injury nor any damage is caused to police mobile etc. Per learned counsel, at best, prosecution case can be regarded as the case of ineffective firing, whereas injuries are minor and not on vital part of the injured persons. It is further submitted that it is a false case, wherein the police has raided the Otaq of the petitioner without any lawful excuse and the prosecution has not placed any thing on record showing any connection of the applicants/accused in any crime. Learned counsel further pointed out that about 17 persons have been nominated in the instant FIR, out of which 09 have been granted interim bail by the learned Sessions Judge, whereas present applicants have approached this Court seeking bail after arrest. In support of his contention, the learned counsel has placed reliance on the following reported judgments:

1. Aftab Hussain versus State PLJ 2005 SC 135.

2. Akbar vwersus The State 2010 MLD 293.

3. Zafar and another versus State and another PLJ 2010 Cr.C (Lahore) 562.

4. Abdul Raheem versus The State 2010 MLD 1631.

Conversely the learned State Counsel though not seriously opposed the grant of bail to the applicants/accused, however, submitted that since the applicants have been nominated in the FIR and two of the applicants/accused have been assigned specific role. They may not be enlarged on bail.

I have heard learned counsel for the applicants and the learned State Counsel and perused the record.

On tentative assessment of the record, it appears that all the offences alleged in the FIR, except offence under section 324 PPC, in view of the Medicolegal report, are bailable and relate to minor injury on the non vital part of the injured. As regards application of Section 324, PPC in the instant case, it appears that prosecution story is not supported by any incriminating material nor the medical reports subscribe to prosecution story. No firearm injury has been inflicted upon any of the injured person, whereas recovery of only five empty shells, when there is allegation of cross firing by both the parties, also create doubt on the prosecution story, which require further enquiry into the matter.

In view of hereinabove facts, and the case law referred and relied upon by the learned counsel for the applicants, I am of the view that, it is a case of ineffective firing where no one has received any firearm injury, whereas other injuries received are on non vital part of the body of the injured person and have been declared by the Medicolegal Officer as Shajjah-e-Khafifah and Jurh Ghayr Jaifah Damiah. The prosecution story, under the circumstances of the case, cannot be considered, free from doubt and the matter requires further enquiry.

Accordingly, the applicants/accused persons, vide short order passed today in Court, were admitted to bail subject to furnishing solvent surety in the sum of Rs.50,000/- each and P.R bond in the like amount to the satisfaction of the learned trial Court, and these are the reasons for such short order.

Needless to observe that the observations made hereinabove are tentative in nature and the trial Court shall not be influenced by any such observation and shall decide the case on the basis of available record and evidence produced.

Judge