Faizan vs The State

1. ORDER AQEEL AHMED ABBASI, J. - Being aggrieved and dissatisfied by the order dated 29.12.2010 passed by the learned Sessions Judge, Shikarpur in Criminal Bail Application No. 1479/2010 out of crime No. 174/2010 under Sections 395, 324, 353, 148,149, P.P.C, of Police Station Khanpur, whereby the bail plea of the applicant was. Declined. The applicant has approached this Court for seeking bail.

2. Brief facts for the purpose of disposal of this bail application and prosecution story as stated in the F.I.R, are that ASI Imam Dino Lund alongwith his subordinate staff namely HC Piyar Ali, HC Nawab Ali PC Abdul Qayoom PC Arbab Ali and PC Khairuddin left police station for patrolling purpose. During patrolling, they came at village Haji Khuwasti where they saw, on the light of vehicles, at the curve of Bagh one couch standing. They went there and came near couch at the distance of 2000 paces, it was 0100 hours of 09.12.2010 they saw, on the light of vehicle, six armed persons alighted from couch, out of them, three were armed with guns, two were armed with T.T. Pistols and one was armed with Rifle. They alighted from vehicle and accused seeking police party started firing upon them in order to commit their murders. The police also fired in their defence. The passengers of couch raised cries that dacoits have robbed them, during firing couch went towards Kandhkot side.

3. From back side of couch it was written as Sada Bahar. The encounter lasted for about 10 minutes thereafter firing stopped. The accused decamped towards southern side in the garden. The police party informed about the incident to higher officers. HC Piyar Ali identified accused while alighting from couch, armed with gun to be the accused Manoo alias Muneer Ahmed son of Azizullah Brohi no Haji Khuwasti, and accused armed with T.T. Pistols to be 2. Baba son of Nabi Bux Brohi, no Haji Khuwasti,

3. Mumtaz son of Nabi Bux by caste Luhar no Sipi Shakh near Walayat Shah. In the meantime, official foot trackers TC Jamaluddin Jafferi and TC Dilmurad Jafferi came there, the complainant with the help of staff took foot prints which led towards village Walayat Shah near a heap of palal on northern side, where they saw one hut/shed, they saw in the shed three persons. It was about 10.00 a.m, they controlled upon them and saw on Rifle was lying near them. They apprehended the accused alongwith their weapons: HC Piyar Ali and HC Nawab Khan were appointed as mashirs and inquired from accused aimed with Rifle about his name who disclosed his name as Raja son of Qasim Luhar no near Village Habal Sethar, from his possession one Rifle 7 mm Pakistani with erased number was secured, on seeing, it was found empty and on his personal search 11 cards and five notes of Rs. 100/- each total Rs. 500/- were secured, accused armed with gun disclosed this name as Mehrab son of Ghulam Qadir by caste Luhar no near Walayat Shah mid from his possession one gun was secured and on opening it was found unloaded, the gun was Pakistani, with erased number and on his personal search they secured five live cartridges of 12 bore and cash of Rs. 200/- in shape of four notes of 'Rs. 50/- each and one Mobile 1110 Model Nokia with sim No. 03342420925. Another accused armed with gun disclosed his name a Faizan son of Abdul Rahman Abbasi of Khanpur town. From his possession one gun was secured; and on opening it was empty, it was Pakistani and its number was. Erased and from personal search of this accused four live cartridges of 12 bore were secured. The complainant party inquired from accused about license, mobile, cards and cash. They disclosed that last night they robbed the same from passengers of couch near curve Bagh alongwith accused Munoo alias Muneer Ahmed son of Azizullah Brohi, Baba son of Nabi Bux Brohi no village Haji Khuwasti Brohi, Mumtaz son of Nabi Bux Luhar no Sipi Shakh near Walayat Shah. They further disclosed that on arrival of police they ran away. The complainant prepared such mashirnama in presence of the above mashirs and brought the accused and property at Police Station where complainant lodged F.I.R, against the accused on behalf of the State.

4. After usual investigation applicant was arrested and challan was submitted in the Court of learned Sessions Judge, Shikarpur where the applicant is facing his trial.

5. It is, inter alia, contended by the learned counsel for the applicant that the applicant is innocent has been falsely implicated in the instant crime at the instance of police. As per learned counsel there is no private complainant Of the alleged offence and all the prosecution witnesses are police personnel. Per learned counsel, present applicant was not arrested from the place of alleged incident nor any recovery has been effected from his possession. The alleged recovery 12 bore gun and five live cartridges is also foisted upon the applicant and no nexus of the alleged crime weapon has been made out. Per learned counsel, even from the contents of F.I.R, no specific role has .Been assigned to the applicant whereas no injury has been caused tp ,any of the police personnel hence the allegations of having committed the Alleged offence against the applicant/accused are false and frivolous. Learned counsel pressed that the applicant/accused may be released on bail subject to furnishing surety.

6. Conversely, the learned State counsel though opposed to the grant of bail to the applicant however, could not controvert the submissions of the learned counsel for the applicant.

7. I have heard learned counsel as well as learned State counsel and perused the record. From the tentative assessm ent of the record it appears that there is no private complainant of the alleged incident whereas the instant crime has been registered at the instance of police and admittedly the applicant/accused was arrested at the Plantation of Head Constable. No one has been shown injured out of alleged offence nor any recovery of the robbed articles appears to have been made from the possession of applicant. It appears to be a case of ineffective aerial firing where no injury has been caused to any private person. As regards application of Sections 6 & 7 of Anti-Terrorism Act, it is yet to be established and retires further inquiry into the matter. In view of the above facts and circumstances reference in this regard may be made to the judgment of the Honourable Supreme Court in the case of Muhammad v. The State (1998 SCM R 454) wherein it was held as under:- "Bail, grant of-Accused had allegedly made an ineffective firing and no injury was attributed to him during the occurrence-Case against accused, therefore, needed further inquiry-Petition for leave to appeal was converted into appeal and accused was admitted to bail accordingly."

8. In view of the above facts and the case-law referred to above I am of the opinion that the applicant/accused has made out a case for grant of bail. Accordingly, he was admitted to bail subject to furnishing surety in the sum of Rs. 100,000/- with P.R, bond in the like amount to the satisfaction of the Trial Court vide short dated 14.01.2011 and these are the reasons for the short order.