ABDUL MANNA N BHUTTO vs STATE
This post-arrest bail application arose from a criminal case registered under Sections 392, 353, 324, and 34 of the Pakistan Penal Code 1860, following an alleged armed robbery and subsequent police encounter. The prosecution alleged that the applicant and his accomplices robbed the complainant and were arrested by the police after a brief exchange of fire. The applicant contended that the prosecution's narrative was highly doubtful, pointing out that no injuries were sustained by either side, no empties were recovered from the scene, and there was an unexplained delay between the occurrence and the arrest. The High Court of Sindh observed that the absence of injuries and empties, combined with the unexplained delay, rendered the applicability of Sections 353 and 324 of the Pakistan Penal Code 1860 highly doubtful. Consequently, the Court held that the case against the applicant fell within the purview of further inquiry, and granted post-arrest bail subject to furnishing a surety bond.
- Whether a case falls within the purview of further inquiry for bail purposes when an alleged police encounter results in no injuries to either side and no empties are recovered from the scene?
- Does an unexplained delay between the time of the alleged incident and the arrest of the accused cast sufficient doubt on the prosecution's case to warrant the grant of bail?
- Can charges under Sections 324 and 353 of the Pakistan Penal Code 1860 be sustained for bail purposes in the absence of any physical injury or corroborative ballistic evidence?
- Section 392, Pakistan Penal Code 1860
- Section 353, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
1. The applicant seeks post arrest bail in Crime No, 238/2008, under Sections 392, 353, 324, 34 PPC of Police Station Steel Town, Karachi His bail plea was declined by the learned IInd Additional District & Sessions Judge, Malir. He had resorted to file the instant application.
2. Succinctly the facts leading to the case are that one Muhammad Ashraf lodged a report at 0100 hours on 02.09.2008 alleging that he alongwith his brother Muhammad Ali and Cousin Muhammad Ibrahim were proceeding to Gulshan-e-Hadeed, Phase-I, on foot from katcha way at about 1045 hours, three unidentified persons suddenly came on foot, one of them was duly armed snatched registration book of his Motorcycle, case of Rs,250/- and from his brother Muhammad Ali and cousin Muhammad Ibrahim, the culprits snatched cash and ran away towards National Highway.
3. In the meanwhile, a police mobile reached on the spot, incident was disclosed. Police chased the accused persons, found four persons going towards the National Highway were signaled to stop, as a consequence thereto firing was exchanged form both sides.
4. Police arrested Applicant and Nadir Hussain on the spot alongwith pistol.
5. After usual investigation the Applicant alongwith co-accused were challenged in the learned trial Court.
6. Learned counsel for the Applicant has contended that prima facie no evidence is available to connote that encounter had taken place between the. Applicant and his accomplices and the police, nor substantial evidence is available to suggest that the occurrence as depicted in the FIR had taken place. It is further pointed out that no one in the encounter was injured nor any empty was secured from the place of incident, to prove the factum of firing from both sides. It is next urged that from the side of police party, only ASI Deedar Ali has been shown to be present on the spot, elements of presence of mobile and/or police party cannot be conveniently presumed to be correct. It is next urged that original registration book in the same of Wahid Bux of Sukkur is not available on police record.
7. Learned counsel for the Applicant has also invited my attention to the effect that the incident had taken place at 1045 hours and the report was lodged on 0100 hours, Applicant was arrested at 12.05 a.m., no explanation has been furnished for delay of one hour and 20 minutes, which simply connote a serious doubt in the alleged incident as depicted in the FIR.
8. When confronted with the above, learned Addl. Prosecutor General, Sindh has conceded that no one was injured in the incident nor empty was secured from the place of incident, however, he has seriously contested that the Applicant, is involved in the commission of crime of a robbery.
9. I have considered the arguments advance by the learned counsel for the parties at bar and perused the material available on record.
10. In absence of any injury sustained by both sides in the encounter, non-availability of empties, coupled with delay shown between the time of occurrence and the time of arrest of the Applicant, the case against the Applicant falls within the purview of further enquiry prima facie the offence committed under Sections 353 and 324 PPC are not spelled out from the facts and circumstances of the case. In support of the above contention, reliance has been placed upon the case of Rab Nawaz vs. the State (1990 SCM R 1085) and Khawand Dino alias Dadoo vs. The State (PLJ 2003 Cr.C.
11. (Karachi) 485).
12. For the foregoing reasons, I am of considered view that the Applicants is entitled to the concession of bail. The applicant is admitted to bail subject to his furnishing surety in the sum of Rs, 1,00,000/- and PR Bond in the like amount to the satisfaction of the learned trial Court.
13. Crl. Bail Application No, 99 of 2009 stands disposed of accordingly.