MUHAMMAD FAYAZ Versus State
This matter arises from a criminal bail application filed by the applicant Muhammad Fayaz, facing trial in Crime No. 18 of 2009 registered at Police Station Site for offences punishable under sections 324, 353, 186 and 34 of the Pakistan Penal Code 1860, concerning an alleged police encounter. The core legal question was whether the applicant was entitled to post-arrest bail pending trial given the circumstances of his apprehension and the evidentiary doubts surrounding the encounter. The Sindh High Court held that the applicant made out a case for further inquiry under subsection (2) of section 497 of the Code of Criminal Procedure 1898, particularly noting that no police personnel sustained injuries and taking into consideration the non-objection raised by the Additional Prosecutor-General. The court laid down the principle that where the manner of an encounter and the injuries sustained by an accused require further inquiry at trial, and no police injuries are reported, the case falls within the scope of further inquiry warranting the grant of post-arrest bail.
- Whether an accused is entitled to post-arrest bail under section 497(2) of the Code of Criminal Procedure 1898 when the manner of a police encounter and injuries sustained require further inquiry?
- Does the absence of injuries to any police personnel during an alleged encounter support the grant of bail for further inquiry?
- Section 324, Pakistan Penal Code 1860
- Section 353, Pakistan Penal Code 1860
- Section 186, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 103, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
1. MAQBOOL AHMED AWAN, J.-- The applicant, facing trial in the Court of II Additional Sessions Judge, Karachi West, applied for grant of bail in Crime No.18 of 2009 for offence punishable under sections 324/353/186/34, P.P.C. of Police Station Site.
2. Precisely, the facts leading to this application are that complainant HC Sher Zaman on 9-3-2009 at .330 hours with his subordinate staff was on patrolling duty. During the course of patrolling, he saw Mazda Truck No. JY-1595, loaded with iron, plates, was coming from the opposite side. It is also alleged that 7/8 persons were also available in the side truck. The complainant party given signal to stop the truck but the driver of the side truck tried to make escape good and other culprits started firing on the police party and the police party in their defence also fired upon the culprits. It is further alleged that one of the culprits sustained bullets injury and was apprehended and on inquiry disclosed his name as Fayyaz and from his personal search on TT pistol with two bullets were recovered.
3. Complainant brought the accused person and property at police station where he lodged F.I.R. on behalf of the State.
4. Mr. Mirza Sarfraz Ahmed, learned counsel appearing on behalf of the applicant has argued that the applicant is innocent and has been falsely involved by the police in order to save themselves from the damage caused to the motorcycle and injury to the accused person who was apprehended at the spot. Learned counsel has further argued that the firing between the police party and culprits took place for sufficient time yet only two empties were recovered from the place of Wardat, which creates doubt whether the incident has taken place in the manner, as claimed by the police or not. He has further argued that the police has committed violation of section 103, Cr.P.C. by not joining independent person as Mashir of recovery of arrest, therefore, he prayed for grant of bail to the applicant.
5. Conversely Ms. Rehana Akhtar, Additional Prosecutor-General has no objection to the grant of bail to the applicant.
6. I have heard the learned counsel for the parties and gone through the material available in the case file.
7. Admittedly, the applicant was apprehended by the police at the spot along with TT pistol and magazine containing two bullets. No person from police party sustained any injury in the encounter. It is yet to be seen whether the applicant had received injury at the hands of police and whether the incident of encounter between the police party and the applicant party took place in the manner as claimed by the police.
8. In view of the above as well as no objection raised by the learned Additional Prosecutor-General. I am of the considered view that the applicant has made out a case for grant of bail as envisaged under sub-clause (2) of section 497, Cr.P.C. Accordingly I have directed by a short order dated 29-6-2009 that the applicant shall be released on bail on his furnishing one surety in the sum of Rs.1,00,000 (Rupees One Lac) and PR Bond in the like amount to the satisfaction of the trial Court and these are the reasons of my short order.
9. H.B.T./M-177/K Bail granted.