IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Crl. Bail Appln. No. S- 667 of 2023.
Applicant: Mevo Khan Mazari, through Messrs Ali Raza Bughio and Mansoor Ali Dahani, Advocates.
Respondent: The State, through Mr. Ali Anwar Kandhro, Additional Prosecutor General.
Date of hearing: 22.12.2023.
Date of order: 22.12.2023.
Date of reasons: 26.12.2023.
ORDER
Muhammad Saleem Jessar, J: Through this bail application, applicant Mevo Khan son of Ahmed Din Khan Mazari seeks post arrest bail in a case registered against him vide Crime No. 88 of 2023 at P.S Buxapur under Sections 324, 353, 399, 402, 148 and 149 P.P.C., after his bail application was declined by learned trial Court vide Order dated 30.10.2023.
2. In nutshell, the case of prosecution is that, on 25.09.2023 a police party of P.S Buxapur headed by complainant H.C Bisharat Ali Domki was on patrolling on Indus Highway; while patrolling when they reached Muhammad Sallah Golo diversion, they received information through spy that some criminals are available at Sharbat Wah with intention to commit some offence, as such the police party proceeded to pointed place and reached there at 2100 hours, where they saw on the torch-lights and headlight of their vehicle accused persons, namely, Hyder Ali alias Baboo alias Sawere alias Pahar Dashti, 2. Nawab Mazari, 3. Meva Khan Mazari having kalashnikovs in their hands accompanying five unknown persons with open faces having guns in their hands were standing on the road, as such the police party stopped their vehicle and asked the accused persons to surrender, but inspite surrendering they started direct firing upon police party with intention to commit their qatl-e-amd, as well as to deter them from performing lawful duties; which the police party retaliated by taking positions and moved ahead but the culprits by taking advantage of jungle succeeded in escaping away after an encounter of about ten minutes. The police party chased them, but could not succeed to capture any of them. Therefore, the police party came back to Police station, where complainant lodged F.I.R to the above effect on behalf of the State.
3. Learned counsel for the applicant mainly contended that, no any independent person has been cited as witness though the alleged incident is said to have taken place at very busy road; that this is case of ineffective firing, as neither anybody from police party nor from accused received any injury or even any scratch. Learned counsel further contended that, in-fact no such incident had even taken place but the complainant has managed this case in order to show efficiency to his high-ups. He also submitted that, it is very astonishing and surprising that during face to face firing for ten minutes from very close range, no body from either party received any scratch. Learned counsel lastly submitted that challan against the applicant has already been submitted; he is no more required for investigation and his further detention in jail would not serve any purpose, therefore, he prayed for grant of bail to the applicant. In support of his contentions the learned counsel placed reliance on 2009 P.Cr.L.J 679, 2014 MLD 414, and 2017 MLD 46.
4. Conversely, learned Addl. P.G. appearing for State opposed grant of application on the ground that the applicant has been nominated in the promptly lodge F.I.R with specific role of making straight firing upon police party thereby deterring them from discharging of their official duties and that the crime weapon i.e. a pistol has also been recovered from his possession. Learned Addl. P.G. supported the impugned order but could not distinguish the case law relied upon by learned counsel for the applicant.
5. Heard learned counsel for applicant as well as learned Addl. P.G., and perused the material available on record.
6. Perusal of record reflects that all the witnesses including mashirs are the police officials and no independent person from vicinity has been cited as witness or mashir, though the place of alleged incident is said to be Indus Highway. No doubt, the evidence of the police officials is as good as other witnesses, but when the whole case rests upon sole evidence of police officials, their evidence requires deep scrutiny at trial. Per prosecution case, the accused persons fired at police party for about ten minutes straightly from close range, but during such face to face firing which lasted for ten minutes, no body from either party received any scratch; this is very surprising, astonishing and does not appeal to a prudent mind, therefore, the case of the applicant on this score only requires further probe as contemplated by subsection (2) of Section 497 Cr.P.C. More-so, prima-facie the ingredients of Section 399 and 402 P.P.C., do not attract to this case, as from bare reading of the F.I.R there appears no any material, which may suggest that the accused persons had made preparation and or gathered at spot for committing dacoity. The applicant has been in jail since date of his arrest i.e. 04.10.2023 and challan of the case has been filed; as such he is no more required for the purpose of investigation. In these circumstances continuous custody of the applicant in jail is not likely to serve any beneficial purpose at this juncture. Furthermore, since all the prosecution witnesses are police officials, as such, there is also no likelihood of tampering with prosecution evidence by the applicant, if he is released on bail. The case law relied upon by learned counsel is very much applicable to the case in hands.
7. A tentative assessment of all above factors and the material available on record makes the case of applicant one of further enquiry in terms of subsection (2) of Section 497 Cr.P.C. entitling him to grant of discretionary relief of bail to him. Accordingly, instant bail application was allowed vide short order dated 22.12.2023, and applicant was admitted to bail upon his furnishing a solvent surety in the sum of Rs.50,000/- (Fifty thousand rupees) and P.R bond in the like amount to the satisfaction of trial Court and these are the reasons for said short order.
8. Before parting with this order, it is made clear that, observations made herein above are tentative in nature and would not prejudice case of either party at trial.
Judge
Ansari