KHAWAND-DINO alias DADOO vs THE STATE
The present post-arrest bail application arises from Crime No. 52 of 2002 registered at Police Station Ratodero under Sections 324 and 353 of the Pakistan Penal Code. The prosecution case is that during a police patrol, an encounter took place between a police party and five suspects, lasting about 25 minutes, resulting in the arrest of the injured applicant at the spot along with a gun and cartridges, while the remaining suspects escaped. No police personnel sustained injuries despite heavy firing. The core legal question was whether the applicant was entitled to post-arrest bail in the circumstances of the case, particularly considering the absence of injuries to the police party and discrepancies in the recovery of empty shells. The court held that the case called for further inquiry into the applicability of the penal provisions and the circumstances of the alleged encounter, thereby granting bail to the applicant subject to furnishing solvent surety. The key principle laid down is that where material aspects of a police encounter and the applicability of penal provisions require further evaluation during trial, and no injuries are sustained by the raiding party, the accused becomes entitled to the concession of bail.
- Whether an accused is entitled to post-arrest bail when no injuries are sustained by the police party during an alleged long-duration encounter?
- Does the absence of matching empty cartridges from the site of a police encounter make out a case for further inquiry under Section 497(2) of the Code of Criminal Procedure?
- Whether bail can be granted when the applicability of specific penal provisions like Section 324 of the Pakistan Penal Code requires further evaluation at trial?
- Section 324, Pakistan Penal Code 1860
- Section 353, Pakistan Penal Code 1860
ORDER
1. The present bail application has been filed by applicant Khawand Dino Jalbani in Crime No,52 of 2002 of Police Station Ratodero being Sessions Case No,439 of 2002 pending in the Court of learned Additional Sessions Judge, Ratodero.
2. The facts giving rise to the present application are that on 7-5-2002 at 11-00 p.m. complainant alongwith police party left the Police Station Ratodaro for performing their duties. After partolling few places they reached at the bank of Rato Barrage near Pir Behadur Shah at about 3-00 a.m. on 8-5-2002. They saw five persons coming towards them. They were asked to surrender themselves alongwith arms but they started firing at the police party. The police party also retaliated. The encounter continued for about 25 minutes when the police party heard the cries of a culprit. They proceeded towards that place and found one person lying injured having a gun in his hand whereas the remaining culprits ran away. On enquiry, that person disclosed his name as Khawand Dino Jalbani, the present applicant. From his possession, one .12 bore gun was secured containing one empty cartridge. From the personal search of the applicant four live cartridges were secured.
3. The applicant was arrested, such Mashirnama was prepared which was attested by P.C. Ghulam Shabir and P.C. Moula Bux. The complainant further disclosed that he fired 50 shots at the culprits apart from other shots fired by other police officers. The applicant and the property were brought to the police station where the complainant lodged the F.I.R. A bail application was moved before the trial Court which was dismissed on 11-6-2002 under the impugned order. The applicant was dissatisfied with the said order, therefore, he has filed the present application.
4. I have heard the advocate for the applicant, Assistant A.-G. for the State, perused the record of this case very carefully and applied my mind to the facts and circumstances of the case.
5. The learned Advocate for the applicant has stated that though the encounter continued for 25 minutes but no empties were secured from the side of police party in which the complainant, only, fired 50 shots apart from the shots fired by other police officials which were found to be more than
200. He has further argued that none of the police officer has received injuries though the distance between them was very short; that the provisions of section 324, P.P.C. are not attributed. He has further argued that the case requires further enquiry, therefore, the applicant may be granted bail.
6. On the other hand learned Assistant A.-G. stated that memo. of Wardat reveals that six empty cartridges and four empty bullets of 7.62 bore were secured from the place of incident, but it has not been specifically mentioned as to from which side empty bullets of 7.62 bore were found lying.
7. He has further stated' that the provisions of section 324, P.P.C. are not attracted but the provisions of section 353, P.P.C. would be attracted, which is a bailable offence, therefore, he has no objection if the bail is granted to the applicant.
8. I have given due consideration to the arguments and find that the complainant had fired 50 shots from his Rifle and other police constables also fired shots which were more than 200 shots, but it is suprising to note that only four empty bullets of 7.62 bore were found lying at the Wardat. The F.I.R. reveals that one culprit was having a Rifle. The possibility of the four cannot be ruled out. However, this point can be properly ascertained at the time of trial. The encounter took place for about 25 minutes but no injury has been received by any members of police party.
9. As regards the attraction of provisions and ingredients of sections 324 and 353, P.P.C., this point can be thrashed out by the trial. At this stage no definite finding can be given with regard to the attraction of any of the above mentioned provisions.
10. After considering the material available on the record I am of the considered view that the applicant is entitled for the concession of bail, therefore, bail is granted to the applicant in the sum of Rs,200,000 (Two lacs) on furnishing solvent surety with P.R. bond in the like amount to the satisfaction of the trial Court. The application is allowed.
Cited by 3 cases
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- Nasir Hussain vs The State K.L.R. 2008 Criminal Cases 1
- NASIR HUSSAIN Versus State 2008 YLR 934