ALI MUHAMMAD and 3 others vs THE STATE

ORDER

' NAIMATULLAH PHULPOTO, Applicants/accused Ali Muhammad, Niaz Ahmed, Sabit Ali and Hidayatullah seek bail in Crime No:355 of 2011 registered against the accused at Police Station- Panb Akil on 21-12-2011 under sections 324, 353, 395 & 364 P.P.C.

2. Brief facts of the prosecution case as disclosed in the F.I.R. Are that on 21-12-2011 A.S.-I.

Muhammad Awais Lashari Incharge P.P. Mahesro of Police Station Ghotki along with his subordinate staff left police station for investigation of Crime No,430 of 2011 registered at Police Station Ghotki under sections 457 and 382, P.P.C. Police party received spy information that accused Shahban Bullo and others wanted in above-mentioned crime were sitting at the otaq of Shahbazi Bullo. On such information, other police parties were also called and proceeded to the pointed placeand reached there at 1430 hours. It is alleged that accused Allah Wassayo alias Kato son of Suhno with Rocket Launcher, (2) Anwar son of Sanwal, (3) Soolami son of unknown, (4) Ali Muhammad son of unknown, (5) Gul Hassan son of Mehrab, (6) Shahban son of Dilijan with kalashnikovs, (7) Hidayatullah son of Sanwal empty-banded, (8) Wahid Dino son of unknown, (9)

Wazeer son of unknown, (10) Wahid Bux son of unknown, (11) Sabit Ali son of Choggo, (12) Niaz Ahmed son of Wazeer Ahmed with Repeaters, all Kursi. Bullo by caste, and 15 unidentified persons armed with kalashnikovs, started firing upon the police party and police also fired in self defence, for 20 minutes. It is alleged that accused persons snatched Official arms and ammunitions from police constables Asghar Ali and Liaquat Ali and took them to the forest for committing murder.

Police-party chased the accused persons and F.I.R. Of the incident was lodged under the above referred sections.

3. After usual investigation challan was submitted in the Court of 1st Civil Judge and Judicial Magistrate Pano Akil under sections 324, 353, 395, 364, P.P.C. The case was sent up to the Court of Session. Bail application was moved on behalf of the above named applicants/ accused but the same was rejected by learned Vth Additional Sessions Judge vide order dated 30-1-2012.

4. Mr. Manzoor Ahmed Junejo learned Advocate for the applicants/accused contended that prosecution story is unnatural and unbelievable. Despite cross-firing with the sophisticated weapons by large numbers of the accused persons and police party no one had received injury from either side. Even damage was not caused to the police mobiles. He further argued neither crime weapons nor snatched weapons and constables were recovered from the present accused during investigation: Accused are no more required for investigation. Ingredients of sections applied in the F.I.R. Are not attracted in this case. Applicants/accused are in jail since nine months.

Lastly it is contended that case was registered against accused due to enmity. In support of his contentions he relied upon the case of Mour v. The State (2008 PCr.LJ 1277) and S. Amanullah Shah v. The State (PLD 1996 SC 2412).

5. Mr. Mohan Lal D.D.P.P. For the State argued that names of the applicants/ accused have been specifically mentioned in the F.I.R. And in 161, Cr.P.C. Statements. Applicants/pccused had fired upon the police party with intention to kill and snatched the official weapons from the police and kidnapped two police constables. He has opposed the bail application.

6. I have carefully heard the learned counsel for the parties and perused the relevant record.

7. From the pe'rusal of the F.I.R. 161, Cr.P.C. Statements of the P.Ws. And other material collected during investigation it transpires that apparently, prosecution story A is unnatural. Despite cross- firing with sophisticated weapons for about 20 minutes, no one received injury from both the sides.

' Empties recovered from the place of wardat were not sealed and sent to the Ballistic Expert for the report. A large number of the accused persons have been involved in this case. Rightly it has been argued that false implication of the accused would not be ruled out particularly, in the circumstances when enmity has been alleged with the police. Mere word of police officials without incriminating material would not be sufficient to disentitle applicants/accused from the concession of the bail. The liberty of an individual is precious and there should always be an all- round effort on the part of the law courts to protect such liberties of individuals. No doubt, this protection can be made available to the deserving ones. The provisions of the Criminal Procedure Code 1898 confer discretionary jurisdiction on criminal courts to grant bail to accused pending trials. Since the jurisdiction is discretionary, it is required to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of society in general.

The jurisdiction has not be exercised in a casual and cavalier fashion. In this case, there are reasonable grounds to believe that present accused have not apparently committed the alleged offence, yet prosecution has to prove its case at the trial. Moreover, all the P.Ws. Are police officials and there is no question of tampering with the evidence. The applicants/accused are in jail since last nine months. On tentative assessment of prosecution case this is a fit case to extend benefit of doubt to the applicants/accused even at bail stage. For my above stated reasons while relying upon above cited authorities, prima facie, it appears that case against the applicants/accused requires further enquiry as contemplated under section 497(2), Cr.P.C. Therefore, concession of the bail is extended to the applicants/accused subject to their furnishing solvent surety in the sum of Rs,200,00 (Two lacs) each and P.R. Bond in the like amount to the satisfaction of the trial Court.

' Needless to mention that observations made hereinabove in the order are of tentative in nature and trial Court shall not be influenced by any such observation while deciding the case on merits.