ORDER SHEET

IN THE HIGH COURT OF SINDH CIRCUIT COURT, LARKANA.

Cr. Bail Appln. No.S- 391 of 2012.

Dated                                   order with signature of hon’ble Judge.

For  Hearing.

21.03.2013.

Mr.  Faiz Mohammad Larik, advocate for the applicant.

Miss Shazia Surahio, State Counsel.

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MOHAMMAD SHAFI SIDDIQUI-J.:-  This bail application  is filed in Crime NO.257/2010 of P.S  Kashmore  for an offence U/S 324, 353, 368 PPC.

                        Brief facts of the case   as depose by the applicant are as under:

“that on the eventful day the complainant alongwith subordinate staff were on road patrolling.  During  patrolling spy information received  that accused Mohammad Mureed Malik and Nadir alias Liee Shar and three unidentified persons with K.Ks, were shifting   abductee of case crime NO.224/2010 P.S Kashmore namely Sagar Kumar to some other place and  would cross from village Sardaroo on two motorcycles.  The complainant proceeded to the pointed place.  Another police mobile was also called for help through  wireless.  It was about 2030 hours when the police party reached  village Sardaroo they saw and identified accused on a motorcycle laded by     Muhammad Mureed Malik, and Nadir alias Liee and in amidst  of them a minor boy was also there.  On the other motorcycle three unidentified accused with K.Ks.  On seeing police they stopped motorcycles and were trying to turn back in the meantime police party told about being police and directed them to stop.  All the accused got down from the motorcycles  and started firing upon police party with intention to murder them.  Police also started firing in defense.  In the meantime the other mobile in leadership of HC Kamand Ali and others reached there.  They have also fired upon the accused person.  The encounter continued for 20/25 minutes and three unidentified accused fled away on two motorcycles and accused Muhammad Mureed and Nadir alias Liee got down from the road alongwith the abducted boy.  Police also chased them and after 50 steps the accused alongwith guns and boy were taken into custody.  After enquiry it was  disclosed by them as one Muhammad Mureed S/O Alman Malik and 2^nd accused disclosed his name to be Nadir alias Laee Shar S/O Sazo and they also disclosed  that the boy is Sagar S/O Achnat KJumar who was kidnapped by them from Kashmore town about 1 ½ months back and the guns are unlicensed one.  ASI Muhammad Anwar Bhutto  and HC Adho Khan were made mashirs  and body search  nothing  has been recovered from them.  Such mashirnama was prepared.  The accused brought at P.S hence this FIR. ”

                        It is contended by the learned counsel  that the FIR  was lodged  after 24 hours delay  and  that the name of the applicant  is not disclosed  in the FIR.  It is contended that the applicant and accused were  allegedly equipped with K.K  however,  it  has not been  reported  that any of the  police official   was  injured   or  that any of the mobile received any bullet.   It is contended that after more than 24 hours the applicant was  implicated in the statement U/S 161 Cr.P.C.  Hence it is a case of further inquiry.  It is contended  that  another offence   registered as Crime NO.224/2010  at P.S Kashmor U/S 365, 337-H(2) PPC wherein the main accused has already been acquitted   namely Nadir and  in this case also  Nadir is on bail.   Learned counsel submits  that from the face of it,   it is  a case of further inquiry.  Learned counsel for the applicant relied upon  case of Mir Hazar Malik v. The State (1999 SCMR 1399) in terms whereof   it is observed   by the  honourable Supreme Court that name of the applicant/accused did not transpire in the FIR and he was involved  subsequently in the commission of the crime.  The petition in the foresaid  case was  converted into appeal and the accused was  enlarged on bail.

                Learned counsel for the applicant  relied upon  on another case   of Sharbat and another v. The State (SBLR 2003 Sindh 848)  in terms  whereof it is observed that   when  on merits the applicant  has  a good case, the abscondence  alone   should not come in his  way for grant of bail.  No doubt a fugitive   from law   loses  some of  rights but he does not lose  right of bail for  ever.  Accordingly the bail was  granted.

             Lastly  learned counsel or the  applicant relied upon the case  of Waris Mohammad v. Ahmad Yar and another  (1976 SCMR 182)  in terms whereof  it  is observed  that   the informant  associated  with investigation and  suspecting three others during first 17 days  and thereafter mentioned four accused including the petitioner as culprits.   The  explanation  given by him that he was not quiet in his senses at the time of making FIR,   was fit  for grant of bail.

                        On the other hand, learned State Counsel submitted  that  in the statement U/S 161 Cr.P.C applicant  has been specifically nominated   though his name does not transpire in the FIR.  However,  three unidentified accused persons were given specific  role and one of the three unidentified  person is applicant as disclosed in statement U/S 161 Cr.P.C

                        I have  heard learned counsel for the  parties  and perused the record.  Prima facie  at the first instance  there  is no name  in the FIR and  secondly the statement recorded  U/S 161 Cr.P.C  can not take the shape of first information report.   Even otherwise   it is a case of ineffective firing. The applicant  who is booked in  an offence U/S 324, 353, 368 P PC  and  no one is either injured nor it is reported as such.  Even the police mobile was not stated to  have suffered  from any effective or ineffective firing. The judgment  cited  by the learned counsel for the applicant are identical  on  the point and the  touchstone   of the principle laid down in the above referred case law.   The applicant is entitled  for  bail before arrest.  Bail is granted to the applicant  subject to furnishing   solvent surety of Rs.200,000/= and P.R  bond in the like amount to the satisfaction of trial Court.

JUDGE