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 Civil Hospital, Khairpur and the accused taking advantage of date garden and darkness escaped away. The police party returned to Police Station and lodged the F.I.R.

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