IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Crl: Bail Application No.D- 855 of 2012
Before
Mr. Justice Ahmed M.Sheikh, J &
Mr.JusticeSalahuddinPanhwar, J.
FOR HEARING.
Applicant: Muhammad Nawaz
@ Bajoo through
Mr.AbdulHaque.G.Odho, Advocate.
Respondent: The State, through Mr.AbdulRehmanKolachi,
A.P.G.
Date of
hearing: 21st.
February, 2013.
O R D E R
SALAHUDDIN PANHWAR, J: The
applicant/accused Muhammad Nawaz alias Bajoo seeks post-arrest bail in Crime No. 23 of 2012 for an
offence punishable Under sections 302,
324, 353, 395, 147, 149 P.P.C & 7-Anti-Terrorism Act, 1997 registered with
Police Station, Baberloi.
02. The
relevant facts, as set-out in the FIR, are that on 15.3.2012 complainant along
with his subordinate staff during patrolling received information from one Irshad son of MuhamadAkram
that 04 unidentified accused and 06
unidentified accused have committed dacoity in his
house; complainant rushed at the pointed place, where accused persons were taking away two Buffaloes.
The police encountered the dacoits; during encounter one PC GhulamFareed
sustained firearm injuries on his both arms. Thereafterinjuredwas
shifted to
03. Learned
counsel for the applicant/accused inter-alia contends
that there are general allegations against the accused persons and no specific
allegations are attributed to the applicant/accused; the incident time is
night, source of light is search light, therefore, it is difficult to identify
the accused persons; during the course of investigation statement U/s 162 Cr.P.C
were recorded which reveals that witnesses have not implicated the present
applicant/accused, thus ,in report u/s 173 Cr.P.C the
name of the applicant/accused was placed in column No.2; the case of the
applicant/accused falls within the ambit of further enquiry; the
applicant/accused is entitled for concession of bail. He has relied upon the
case 1998 SCMR 1445.
04. Conversely
Mr.AbdulRehmanKolachi, learned A.P.G argued that the name of the
applicant/accused transpires in the F.I.R; the applicant/accused along with
co-accused persons committed dacoity; when police
encircled them, they caused deterrence, resultantly, in such episode, PC GhulamFareed lost his life in the line of official duty,
thus the applicant/accused is not entitled for concession of bail.
05. After
meticulous examination and perusal of record, it appears that name of the
applicant/accused transpires in the F.I.R with specific allegation that at the
time of offence he was armed with G-3 Rifle and caused direct fire shots upon
the police party; caused deterrence resulting into death of PC Ghulam Freed; it is also alleged that applicant/accused
along with the co-accused persons committed dacoity
in the house of one Irshad Ali and the said Irshad Ali has categorically implicated him in his
statement recorded U/s 161Cr.P.C. Regarding the plea that
witnesses in their 162 Cr.P.C statements did not
implicate the applicant; it is revealed that at the time of taking cognizance
the learned Special Judge issued notices to the witnesses to check the veracity
and authenticity of statements U/s 162, Cr.P.C;
pursuant to the notices the witnesses appeared and denied the said statements
and further categorically stated that the Investigation Officer has not
recorded said statements. While, making tentative assessment it appearsthat applicant/accused is involved in a case of
capital punishment and no sufficient material is available to make the case of
applicant/accused within the limitations of further inquiry.
06. Regarding
the plea of applicant/accused that during investigation, the Investigating
Officer has found him innocent and applicant/accused is placed in column No.2,
it is suffice to say that police report ipsi dixit is not binding upon the court, more particularly;
where the witnesses have denied the statements recorded u/s 162 Cr.P.C, by Investigation officer. It is settled principle
of law that,while deciding the bail application,
court has to see the facts and circumstances of the case and if same are in
negation or overwhelming upon the police report, in such eventuality, the
outcome of such report is of no help for the accused at such stage of the case.
07. With
regard to the case law relied upon by the learned counsel for the
applicant/accused, it is germane to say that in criminal administration of
justice; each case is to be decided on its’ own peculiar facts and
circumstances, therefore, by examination of the above case law, it is manifest
that facts and circumstances are entirely different, thus such precedents are
not helpful in the instant case to the applicant.
08. As
discussed above, the applicant/accused has failed to bring his case within the
purview of sub-section (2) of Section 497, Cr.P.C,
thus the applicant is not entitled for post-arrest bail. However, the trial
court is directed to conclude the trial within a period of three (03) months
within the spirit of fair trial as enshrined Under Article 10-A of the
Constitution of Islamic Republic of Pakistan, 1973.
09. The
observations made herein above are tentative in nature and would not prejudice
the case of either party.
Above
are the reasons of our short order dated 21st. February, 2013.
JUDGE
JUDGE
A.R.BROHI