ORDER SHEET

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

Cr. Bail Appln.  No:  S- 457 of 2012.

Date                          Order with signature of judge.

1. For orders on office objection as flag A.

2. For orders on M.A No.2394/2012.

3. For Hearing.                                                      

05.11.2012.

Mr. Muhammad Iqbal Mahar, advocate for the applicant.

Mr. Ali Raza Pathan, State Counsel.

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NAIMATULLAH PHULPOTO,J.:-Applicant/accused Farooq Ahmed seeks bail in Crime NO.221/2012  registered against the accused  at P.S A Section Kandhkot  for offences punishable under sections 353, 324, 148, 149 PPC.

                        Brief facts of the prosecution case   as disclosed in the FIR  are that on 01.09.2012 HC Amanullah  of P.S   A Section Kandhkot left police station  alongwith his subordinate  staff vide roznamcha entry No.15 at 0900 hours for patrol duty.  While patrolling at various places  when police party reached at patrol pump where police party received  spy information that notorious dacoit Eiso S/O Dholeo Sabzoee  alongwith his companions was proceeding  to the Kandhkot town for committing some crime.  On such information, police party proceeded to  the pointed place and  at 0945 they reached  at Haibat  Link Road  where  they saw 14 accused persons  armed with sophisticated weapons.   They were  identified  by the police officials  as 1.Eiso, 2.Illahoo both sons of Dholio, 3.Hakim S/O Gul Muhammad alias Guloo 4.Noor Khan S/O Misri, 5.Mir Khan S/O Bahadur bycaste Sabzoe 6.Waheed S/O Manzoor Golo 7.Dur Mohammad S/O Gulsher 8.Jamsher S/O Bakhtiar bycaste Sabzoe 9.Allah Bux S/O Misri Sabzoe 10.Muhammad Hashim S/O Mohammad Qasim Khoso  11.Arzi S/O Bati Sheikh 12.Nazar Muhammad alias Lakki  S/O Hazoor Bux 13.Papoo S/O Sanwan Sheikh  and 14.Farooq S/O Abdul Karim Nasirani (present applicant).  It is alleged in  the FIR  that police challenged  the accused persons to surrender but  accused persons fired upon the police party  with intention to kill.  Firing lasted for 10 minutes thereafter  accused succeeded in running away.

                        During investigation, applicant/accused Farooq S/O Abdul Karim was arrested.  After usual investigation challan  was submitted against the accused under sections 353, 324, 148, 149 PPC.    Bail application on behalf of the applicant/accused Farooq Ahmed was moved before learned Additional Sessions Judge, Kandhkot, same was rejected by his order dated 18.09.2012 thereafter applicant/accused approached to this Court for similar relief.

                        Mr. Mohammad Iqbal Mahar, learned advocate for the applicant/accused contended that despite encounter with the sophisticated weapons no one received injury from either side neither vehicle  parked at the wardhat  was damaged by firing of 15 accused persons.   Applicant was also not arrested from  the spot.  After arrest of the accused no incriminating article was  recovered from his possession.  All the P.Ws are police officials and deeply interested. Offence would not fall under section 324 PPC.  Applicant/accused was minor at the time of incident.  In support of the above submissions he relied upon the  school leaving certificate  issued by Head Master Mumtaz Abad Kandhkot which shows date of birth of applicant/accused 13.08.1998. 

                        Learned State Counsel argued that applicant/accused has been nominated in FIR.  He had fired  upon the police party with intention to kill and there is huge material against the applicant to connect him with the commission of crime which fall under the prohibitory clause of section 497 Cr.P.C He strongly opposed the bail application.

                        I am inclined  to grant bail to the applicant/accused  for the reasons  that there  was cross firing for about 10 minutes with the sophisticated  weapons  but no one received injury/scratch  from both sides.  Even no damage was caused to the police mobile of the  police officials.  Case has been challaned.  All P.Ws are police personnel therefore, there is no question of tampering with the prosecution evidence.  Apparently, in the circumstances of the case application of section 324 PPC  is yet to be determined  at the trial.   It is obviously unbelievable  that 14 accused persons succeeded   in running  away after encounter and police armed with sophisticated  weapons could not arrest  any of the accused.  This aspect  of the case needs consideration.  The contention of learned State Counsel  that all the witnesses have implicated the applicant during investigation, it may be mentioned  here that  evidence at bail stage can not be appreciated deeply and only tentative  view is to be taken to find out as to whether accused is connected with the commission  of alleged offence or not.    In such type of cases, basic rule is bail and not jail. On the basis of mere allegation without sufficient material, concession of bail can not be refused to the applicant/accused as punishment.   For the purpose of bail law is not to be stretched in favour of prosecution and if any doubt  arises its benefit must go to accused.  In the present case apparently doubt arises, its benefit is extended to applicant/accused at bail stage.

                        For the above reasons, I hold  that case against the applicant/accused Farooq Ahmed requires further inquiry as contemplated U/S 497(2) Cr.P.C.  Therefore, concession of bail is extended to the applicant/accused on  his furnishing solvent surety in the sum of Rs.100,000/= and P.R bond in the like amount to the  satisfaction of trial Court.   

            Needless to mention here that the above observations are tentative in nature and trial  Court shall not be influenced  by the same at the trial.

JUDGE