ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD.

Criminal Bail Application No.S-419 of 2009

DATE          ORDER WITH SIGNATURE OF JUDGE

14.12.2009.

      Miss. Nasim Abbasi, Advocate for applicants.

Mr. Shahid Ahmed Shaikh, A.P.G, Sindh.

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MR. AHMED ALI SHAIKH, J.   Applicants Badaruddin and Ali Asghar seek post arrest bail in crime No.38 of 2007 of PS Dadu, offence under section 365, 394, 342, 324, 506/2 PPC and 17 (3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979.

2.          The bail plea of the applicants has been turned down by the trial Court vide order dated    11-06-2009.

3.          On 11-02-2007 complainant P.C Manzoor Ali lodged FIR with PS Dadu, which reads as under:-

“Complaint of the complainant is that he is posted as constable in Police Department. On 10-02-2007 he and HC Muhammad Nawaz, PC Abdul Razaque went at Jessar Petrol Pump Dadu for checking the coaches, it was about 2305 hours when a Rab Nawaz Coach came from Larkana side and stopped there, so the complainant went inside the Coach for checking purpose, he saw passengers including ladies sitting in the Bus, the Driver was Niaz Hussain and during checking the complainant suspected two persons sitting on the back side seat, hence he went there and asked them for giving their checking who took out pistols and one of the accused put his pistol at the temporal of the complainant one person was also sitting in the side of the Driver who also took out pistol and caused butt blow of the same to the driver and asked him to drive the BuS, the passenger raised cries on which the police officials who were standing near the Bus tried to came towards the Bus but the accused fired at the police party and police did not fire at the accused due to availability of the passengers in the Bus, the accused then over powered the complainant as well as driver and passengers and asked the driver to drive the Bus, hence the Bus was being driven towards Bhan road in the meantime two police mobiles also reached near the Coach, the accused also fired at the police mobiles the police also fired in self defence and such firing continued, the police who were sitting at the pickets also tried to stop the vehicle but the accused asked the driver not to stop the Bus, the accused also issued threats of dire consequences to the passengers, in the meantime one bullet hit to the tire of the Bus so also in Engine, hence the driver asked the accused that the Bus is not in condition to be driven but the accused forced him to continue his driving, because the police is chasing them, the passengers resisted on which the accused caused them butt blow and caused them injuries, in the meantime the Coach stopped, so the accused took the complainant with them and left the Bus as well as passengers, the police mobiles also reached there but the accused took the complainant and succeeded to run away from the police, then after covering some distance the accused, the police again made nakabandi and due to such situation the accused left the complainant and went away. Then the complainant met with the police and found SHO Muhammad Ayoob Brohi ASI Qadir Bux, ASI Dilawar Khan Bhutto with their staff were available to whom he narrated full facts and then the complainant came at P.S and lodged such FIR that the five accused being armed with deadly weapons were sitting in the Coach with intention to rob the same and during search, the accused resisted and they caused injuries to complainant, driver Niaz Hussain and passengers, the accused also deterred the police party in performing their duties, have also fired at them with intention to commit their murder, the police also made firing in self defence, police got freed the complainant and other passengers, all the accused have been seen at the bulbs of vehicle, and will be identified if seen again, the accused have also issued threats of dire consequences, investigation may be conducted.”

4.          During investigation, on 04-04-2007 the applicants were shown to be arrested from Central Prison, Hyderabad while they were already confined in another case.

5.          It is, interalia, contended by the learned counsel for applicants that the names of the applicants do not appear in the FIR nor their features or huliya have been given; no recovery of any article has been effected and absolutely there is no piece of evidence against the applicants, which could show any nexus with the alleged offence.

6.          Conversely, Learned A.P.G, Sindh for the State has vehemently opposed the bail plea of the applicants, on the ground that they are involved in the heinous offence, in which so many rounds were exchanged by the applicants and police party. He further stated that the names of the present applicants have been disclosed in 161 Cr.P.C statement of P.C Muhammad Siddique, therefore, the applicants are not entitled to the concession of bail.

7.          Heard learned counsel for the parties and perused the record.

8.          Admittedly the names of the applicants do not find place in the FIR nor their description or marks of identification or features have been given; no recovery has been effected from either of the applicants. So for the applicability of sections 394 PPC and 17 (3) Offences Against Property (Enforcement of Hudood)Ordinance, 1979 is concerned, from the plain reading of the FIR, I do not find that any offence in respect of robbery or harraba has been made out. Only piece of evidence against the present applicants is 161 Cr.P.C statement of P.W P.C Muhammad Siddique. Interestingly such statement was recorded on 15-02-2007 after four days. Though P.W Muhammad Siddique is Police Constable and according to his version, he was member of the police party who followed the culprits and till the drop scene of the episode he was present on the place of occurrence but it is very strange that he remained mum for four days and later on disclosed the names of present applicants. Even the belated 161 Cr.P.C statement does not carry any weight. Moreover, there is no such evidence to connect the applicants with the commission of alleged offence.

9.          For the foregoing reasons, I am of the considered view that there are no reasonable grounds to believe that the applicants are guilty for the offence punishable with life imprisonment or ten years imprisonment but in the circumstances of the case, it appears that their case falls under subsection (2) of section 497 Cr.P.C and requires further inquiry. Hence, I allow this bail application and admit the applicants on bail, subject to furnishing their solvent surety in the sum of Rs.100,000/- (Rupees one lac only) each and PR Bond in the like amount, to the satisfaction of trial Court.

10.         The observations made in the above order are tentative in nature and will not prejudice the case of either party at the trial.

11.         All the pending applications are also disposed of.

                                                      JUDGE.

A.C/P.A