ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

 

 Criminal Bail Application No. 208 of 2017

 

Applicant:                             Ghulam Qadir alias Karo s/o. Imam Bux 

                                                Through Mr. Abdul Karim Lakhani, Advocate.

 

Respondent:                         The State, through Ms. Rahat Ehsan, DPG.

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Date of hearing:                    09.03.2017

Date of order:                        09.03.2017

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O R D E R

 

ZAFAR AHMED RAJPUT, J:-   Through instant criminal bail application, applicant/accused    Ghulam Qadir alias Karo s/o. Imam Bux seeks post-arrest bail in Crime No. 13 of 2015, registered at PS Ounger/Jherruck, District Thatta under Section 324/353/401 P.P.C. His earlier bail application in Sessions Case No. 221 of 2015 was heard and dismissed by the learned IInd Additional Sessions Judge, Thatta, vide order dated 20.01.2017.

 

2.         Briefly stated, the facts of the case are that on 14.03.2015 complainant ASI Ali Asghar Shah, Incharge SHO PS Ounger/Jherruck alongwith his subordinate staff left PS vide entry No. 6 at 1550 hours in government vehicle bearing No. SP-6942 and during patrolling when they reached Behrani Link Road Stop at about 0445 hours on 15.03.2015, three persons having weapons like pistol made straight fire with intention to kill them. In retaliation, police party also fired upon them. During encounter applicant/accused fell down on the ground, whereas two other persons ran away while making firing. The police arrested applicant/accused, who sustained injuries on his knee joint of leg and one unlicensed pistol of 30 bore was also recovered from him with two live bullets, who disclosed the names of absconding accused as Shakeel and Uris and also disclosed that they were available on the spot for committing robbery.

 

3.         The learned counsel for the applicant/accused has mainly contended that the accused is innocent and has falsely been implicated in this case; that neither the accused was present on the scene of offence nor he participated in the incident even he was not arrested from the spot as he was arrested from his house alongwith two other persons, namely, Manzoor s/o. Kamil Brohi and Khamiso s/o. Qabil Brohi, on that the father of the accused filed a Constitutional Petition bearing No. 1429 of 2015 before this Court; that as per prosecution story the encounter lasted about 10 minutes but surprisingly none from police party sustained any injury nor even any circumstantial evidence is available with the prosecution to prove alleged encounter and to connect the accused with the commission of offence under Section 324 P.P.C.; as such, the case of accused falls within the purview of further enquiry, who is in custody since 15.03.2015; therefore, he is entitled to be released on bail. 

 

4.         On the other hand, learned DPG has opposed this application for grant of bail on the ground that accused was arrested from the spot in injured condition and he was found in possession of one unlicensed pistol and since he has made murderous assault upon police party, he is not entitled for the concession of bail. 

 

6.         I have considered the arguments advanced by the learned counsel for the accused and learned DPG as well as perused the material available on record.

 

7.          It appears that the alleged incident took place on 15.03.2015 and since then the accused is in judicial custody. The offence under Section 353 P.P.C. is bailable, while offence under Section 401 P.P.C. does not fall within the prohibitory clause of section 497 Cr.P.C. It is an admitted fact that none from police party has sustained any injury in the alleged encounter; even not a single bullet allegedly fired by the accused hit the police mobile. Under the circumstances, it is yet to be determined as to whether the case of accused falls within the purview of Section 324 P.P.C. or not, which is to be decided at the time of trial by the trial Court. Hence, the case of accused calls for further enquiry as envisaged under sub-section (2) of Section 497 Cr.P.C.; therefore, he is admitted to bail subject to his furnishing solvent surety in the sum of Rs.100,000/- (Rupees One Hundred Thousand only) with P.R. Bond in the like amount to the satisfaction of the trial Court. However, in case the accused misuses the concession of bail, the trial Court shall be at liberty to cancel the same after giving him notice, in accordance with law.

 

JUDGE

Athar Zai