Syed MUNIR SHAH alias PATTU PIR and another vs THE STATE

' MRS. KHALIDA RACHID, J.--- The facts leading to the filing of the instant bail application moved by Syed Munir Shah alias Pattu Pir and another are that on 24-4-2001, the police party headed by Atiqullah Khan, D.S.P. Circle, Syed Badshah Khan, Inspector, S.H.O. Police Station Saddar, Lal Farid Khan, S.H.O. Police Station, City, Qaiser Khan, A.S.-I. And others of Police Station Cantt. Were proceeding to raid a place of proclaimed offenders when at Malang Abad, they were informed by a driver of a pick-up that some armed persons were busy in looting the buses. They immediately arrived at the spot of occurrence and noticed that 25/30 buses were being held for the purpose of looting. Jehangir Khan alias Khanay (deceased), Munir Shah and Taimoor Shah (petitioners herein) were standing and holding the buses on gun point. The accused were ordered to surrender, instead they started firing. In return, police also fired in the air. As a result of firing, Jehangir Khan died and Syed Munir Shah got injured. However, from the possession of the accused, the following arms and ammunition were recovered: ' Rifle G-3 bore No.584220 USA with bandolier; 2 spare chargers and 42 rounds G-3 bore, two hand- grenades from the possession of Jehangir Khan (deceased), Kalashnikov No.380095 with bandolier; 2 spare chargers with 70 cartridges of 7.62 bore and two hand-grenades from the possession of S. Munir Shah, one Kalashnikov 222 bore No.A-3303 with bandolier, 2 extra chargers and 65 cartridges of 22 bore from Taimoor Shah, were recovered.

2. The accused were accordingly booked vide F.I.R. No.299, dated 24-4-2001 under sections 324/353/34, P.P.C., 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, 13 Arms Ordinance and 5 Explosive Substances Act. Section 302 was added later on. The petitioners being not obliged with the concession of bail by the lower fora approached this Court through the instant petition.

3. Mr. Nek Nawaz Khan, learned counsel for the petitioners, praying for the bail of the petitioners contended that the petitioners are falsely involved and wrongly enroped for achieving ulterior motives. The learned counsel also disputed the recovery of aforesaid arms and ammunition from the petitioners/accused party. Arguing the mala fides on the part of the prosecution, the learned counsel submitted that some times back Rasool Khan Wazir, a retired officer, was murdered for which Syed Munir Shah, petitioner, and others were charged which was later on compromised.

However, Atiqullah, D.S.P., relative of said Rasool Khan, nurtured grudge and bent upon of taking revenge. That on the day of occurrence, Syed Munir Shah, petitioner, who was under treatment of Dr. Chanzeb Hakeem Khan, alongwith his brother Taimoor Shah, petitioner, and friend Jehangir Khan (deceased) had come out of their house to proceed to doctor for medical examination when they were fired at by the police party. The fire shot of D.S.P. Hit the deceased fatally and fire shots of S.H.O., Police Station Saddar injured petitioner Munir Shah. That despite all efforts, the petitioners could not get the F.I.R. Registered against the D.S.P. And other police officials. Therefore, they filed Writ Petition No.523 of 2001 praying for the issuance of writ directing the official of police station concerned to register the F.I.R. Against the respondents concerned which is pending adjudication.

That it was after the filing of the writ petition, the police added the provisions of section 302, P.P.C. In the F.I.R. The learned counsel also took exception to the recovery of arms and ammunition from the accused party. The learned counsel submitted that G-3 Rifle No.584220 USA is 8 mm, allegedly recovered from Jehangir Khan deceased, was in fact recovered from one Zulfiqar Ahmad on 23-4- 2001 in case under sections 107/151, P.P.C. The weapon being licensed one (copy of licence placed on record), Zulfiqar Ahmad was released on 27-4-2001 on execution of personal bonds (copy of order, dated 27-4-2001 Annexure "F" placed on record). It is further argued that the accused party was assaulted when they were still in the vehicle which is evident from the fact that deceased was hit and injured inside the vehicle which is still in the possession of the respondent/police.

4. The learned counsel for the State opposed the bail of the petitioners on the plea that petitioners were arrested at the spot with huge quantity of arms and ammunition.

5. We may not go into the deep appreciation of evidence at this stage of bail. However, we have no hesitation to hold that this is a case of further enquiry for the simple reason that not a single statement of a driver out of 25/30 buses or any passenger was recorded by the police. We also have reservations as to how 25/30 buses were being looted by only 3 persons (petitioners/accused) in the early hours of the morning. Site plan speaks the fact by itself, some 25/30 vehicles circled around three looters holding the buses and hundred of passengers on gun points could be a scene of action movie rather a fact of life and reality.

6. In view of the above, we allow this petition and direct the release of the petitioners provided they furnish bail bonds in the sum of Rs.1,00,000 (Rupees one lac) each, with two sureties, each in the like amount to the satisfaction of Additional Registrar of this Court who shall see that the sureties are reliable and men of means having sufficient immovable property in their names, value whereof is equivalent to or more than the amount of bail bonds.