ALI KHAN and others vs THE STATE

ORDER

1. ' GHULAM DASTAGIR A. SHAHANI, J.---Dismissed as infructuous.

2. Granted subject to all just exceptions.

3. By this order I propose to dispose of this application for bail moved on behalf of applicant/accused Ali Khan, Ali Asghar, Muhammad Hassan and Mirzo respectively in Crime No,145 of 2006 P.S. Qazi Ahmed District Nawabshah, under sections 398 and 402, P.P.C.

2. ' Brief facts of the case are that SIP Muhammad Sulleman Bhutto recorded F.I.R. On behalf of the State at P.S. Qazi Ahmed on 15-9-2006, stating therein that he along with subordinate staff was on patrolling duty and when the reached at Roshan Abad, 10/11 persons duly armed with weapons came on the road and aiming their weapons gave signal to stop their vehicle, police party stopped their vehicle and disclosed to be a police and after giving hakals asked them for raising their hands up and stop. Accused started running towards the eastern side. Out of them police apprehended 4 remaining 7 accused ran away towards a jungle who were identified by ASI Gul Muhammad and HC Manzoor Hussain to be All Bux, Ghulam Rasool Shamoo alias Shaman and Manzoor, and remaining 3 were unidentified. ASI Gul Muhammad and HC Manzoor appointed as mashirs and on inquiry one of them having .222 rifle of KK type disclosed his name as Hassan son of Imamuddin Khoso, two magazines containing 30 live bullets were also secured from his possession. The other person having SBL gun and khaki coloured bag containing 20 live cartridges disclosed his name as Mirzo son of Morio Khoso, were also secured from his possession. The third person disclosed his name as Asghar son of Moula Bux, from his possession .12 bore pistol loaded with cartridges and from the side pocket of his shirt secured 8 live cartridges of .12 bore whereas fourth, one disclosed his name as Ali Bux, son of Moula Bux, from whom one SBBL gun of .12 bore and 14 live cartridges were . Secured. All the -crime weapons were taken in possession by the police. The apprehended accused disclosed the names of particular persons who ran away to be All Bux Lund, Ghulam Rasool Machi, Shaman Ghaloo, Manzoor Hussain and three unknown persons, who were friends of Ali Bux. They further disclosed that they were standing on the road with intention to commit the crime. Such mashirnama was prepared by the Police and the accused and property were brought at police station, where F.I.R. Was recorded. It is further contended in the F.I.R. That accused Hassan Khoso, Morio and Ali Khan are also absconders in a crime No,83/2006 under section 324, P.P.C. Of the same police sation.

3. ' The bail application was moved on behalf of the applicants/accused in the Court of Sessions Judge, Nawabshah but the same was rejected vide order dated 8-1-2007, on the ground that applicant/ accused were apprehended by the police along with crime weapons and are involved under section 324, P.P.C. In a crime No,83/2006 of same P.S. And crimes of highway robbery are fastely spreading in our society now a days. Hence present application has been filed.

4. ' Heard Mr. Ayas Ali Gopang, learned counsel for the applicants/accused, who argued that accused are said to have been armed with weapons, but not a single fire was maths by them. They are innocent and have been falsely implicated in the present matter and no such incident has been taken place and the offence is punishable up to 7 years and does not fall with the prohibitory clause of section 497, Cr.P.C.

5. ' On the other hand Mr. Muhammad Azeem Panhwar learned State Counsel conceded to the grant of bail, on the grounds that offence does not fall within the prohibitory clause of section 497, Cr.P.C.

6. And is 'punishable up to 7 years. He further added that so far recovery is concerned, it is yet to be decided at trial.

7. ' Heard learned counsel for the applicants/accused, as well as to the learned State Counsel and perused the material available on record.

8. From face of it, no evidence has been collected against the applicants that they committed any offence punishable under sections 398/399, P.P.C. Even if the alleged recovery of the weapons is believed to be true, the offence will not fall within the mischief of section 399, P.P.C., as according to learned counsel for applicants, no evidence has been collected by the prosecution to prove that the applicants have made any preparation for committing the dacoity. Merely sitting armed will not bring the case of accused within the mischief of section 399, P.P.C. Even otherwise assembly of 5 armed persons by itself would not constitute the preparation for dacoity. Reliance is placed in a case of Amir Ali Khan v. The State 1994 PCr.LJ Karachi 576 as well as a case of Hatim and others v.

9. The State 1994 PCr.LJ Karachi 900 respectively.

10. In view of aforesaid circumstances, after considering the contents raised by learned counsel for the applicants/accused and no objection recorded by the learned State Counsel for grant of bail to the applicants/accused, I am of the view that case of applicants/accused required further inquiry and is covered under section 497(2) Cr.P.C. Accordingly the applicants/ accused are admitted to bail by furnishing solvent surety in the sum of Rs,1,000,00. (One lac) each and P.R.

11. Bonds in the like amount to the satisfaction of the trial Court.