ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                                Cr.Bail.Appl.No.S- 372  of  2015

DATE        ORDER WITH SIGNATURE OF JUDGE

05.10.2015.

Mr. Muhammad Shafique Khan, Advocate for applicant.

Mr. Iram Ahmed, D.D.P.P. for the State.

                                    =

ABDUL MAALIK GADDI, J:         Applicant / accused seeks post arrest bail in Crime No.29/2015 u/s 324, 353, 34 PPC registered at P.S. Hali Road, Hyderabad. Applicant had applied for post arrest bail before the learned trial Court but the same was rejected vide order dated 18.03.2015.

2.         Facts necessary for disposal of this bail application are that on 15.02.2015 when the police party headed by complainant alongwith his subordinate staff were on patrolling duty and during patrolling, they received spy information that absconding accused of P.S Hali Road namely Faizan @ Kalia alongwith his companion Zubair @ Jin Baba (present applicant) were standing near Shadman Glass Factory alongwith motorcycle, on such information police party reached at the pointed place and saw the present applicant alongwith co-accused, who on seeing the police party started making firing upon them. Police also made firing in their self defence. During encounter, police apprehended the present applicant in injured condition and recovered one 30 bore pistol from his possession whereas co-accused Faizan @ Kalia made his escape good on motorcycle. 

3.         Learned counsel for applicant submitted that applicant is innocent and has been falsely implicated in the case in hand by police. Learned counsel further submitted that during encounter none from the police party has received any injury nor any scratch to the police mobile was made, therefore, Section 324 PPC is not attracted. Per learned counsel, place of incident was a thickly populated area but despite of that police has failed to call any private person to act as mashir. Since both the mashirs belong to police party thus there is a flagrant violation of mandatory provisions of Section 103 Cr.P.C.

4.         On the other hand, learned D.D.P.P for the State vehemently opposed the bail application on the ground that present applicant alongwith co-accused Faizan duly armed in furtherance of their comment intention, started firing upon the police party with intention to kill them, but it was the luck of police party who saved themselves from the firing of accused party and the accused was apprehended at the spot in injured condition, one unlicensed pistol has also been recovered from his possession. The offence is non-bailable, so at this stage, the applicant / accused is not entitled for concession of bail. He further submitted that this applicant / accused is involved in some other criminal cases and if at this stage he is granted bail, he would certainly involve in such type of criminal activities.

5.         Parties advocates have been heard and perused the record.

6.         It is an admitted fact that alleged encounter in between the applicant and police party continued for a considerable time but it is surprising to note that nobody from the police party had received any injury nor even any scratch to the police mobile is pointed out. It appears that this is a case of ineffective firing. The present applicant was arrested from a thickly populated area but no any independent witness has been cited to act as mashir nor the police made any efforts in this regard. Case has been challaned and the applicant is no more required for further investigation. There is also no question of tampering with the prosecution witnesses as all the witnesses in this case are police officials. Nothing on record that present applicant is a previous convict. It is contended by learned D.D.P.P. that applicant / accused is involved in some other criminal cases, therefore, he is not entitled for bail. Reverting to the contention as raised by learned D.D.P.P, it is suffice to say that mere pendency of other criminal cases is no ground to treat an accused as a habitual, hardened and desperate criminal. In this respect, I am also supported with the case of Khalid Taqi v. The State, reported in 1999 P.Cr.L.J 271.  

7.         Keeping in view the given circumstances, applicant has succeeded to make out his case within purview of sub-section 2 of Section 497 Cr.P.C hence he is admitted to post arrest bail subject to his furnishing solvent surety in the sum of Rs.100,000/- (One lac) and P.R. Bond in the like amount to the satisfaction of trial Court.

                                                                                                                              JUDGE

Tufail