ORDER SHEET
IN THE HIGH COURT OF SINDH CIRCUIT COURT, LARKANA.
Cr. Bail Appln. No.S- 391 of 2012.
Dated order with signature of hon’ble Judge.
For Hearing.
21.03.2013.
Mr. Faiz Mohammad Larik, advocate for the applicant.
Miss Shazia Surahio, State Counsel.
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MOHAMMAD SHAFI SIDDIQUI-J.:- This bail application is filed in Crime NO.257/2010 of P.S Kashmore for an offence U/S 324, 353, 368 PPC.
Brief facts of the case as depose by the applicant are as under:
“that on the eventful day the complainant alongwith subordinate staff were on road patrolling. During patrolling spy information received that accused Mohammad Mureed Malik and Nadir alias Liee Shar and three unidentified persons with K.Ks, were shifting abductee of case crime NO.224/2010 P.S Kashmore namely Sagar Kumar to some other place and would cross from village Sardaroo on two motorcycles. The complainant proceeded to the pointed place. Another police mobile was also called for help through wireless. It was about 2030 hours when the police party reached village Sardaroo they saw and identified accused on a motorcycle laded by Muhammad Mureed Malik, and Nadir alias Liee and in amidst of them a minor boy was also there. On the other motorcycle three unidentified accused with K.Ks. On seeing police they stopped motorcycles and were trying to turn back in the meantime police party told about being police and directed them to stop. All the accused got down from the motorcycles and started firing upon police party with intention to murder them. Police also started firing in defense. In the meantime the other mobile in leadership of HC Kamand Ali and others reached there. They have also fired upon the accused person. The encounter continued for 20/25 minutes and three unidentified accused fled away on two motorcycles and accused Muhammad Mureed and Nadir alias Liee got down from the road alongwith the abducted boy. Police also chased them and after 50 steps the accused alongwith guns and boy were taken into custody. After enquiry it was disclosed by them as one Muhammad Mureed S/O Alman Malik and 2nd accused disclosed his name to be Nadir alias Laee Shar S/O Sazo and they also disclosed that the boy is Sagar S/O Achnat KJumar who was kidnapped by them from Kashmore town about 1 ½ months back and the guns are unlicensed one. ASI Muhammad Anwar Bhutto and HC Adho Khan were made mashirs and body search nothing has been recovered from them. Such mashirnama was prepared. The accused brought at P.S hence this FIR. ”
It is contended by the learned counsel that the FIR was lodged after 24 hours delay and that the name of the applicant is not disclosed in the FIR. It is contended that the applicant and accused were allegedly equipped with K.K however, it has not been reported that any of the police official was injured or that any of the mobile received any bullet. It is contended that after more than 24 hours the applicant was implicated in the statement U/S 161 Cr.P.C. Hence it is a case of further inquiry. It is contended that another offence registered as Crime NO.224/2010 at P.S Kashmor U/S 365, 337-H(2) PPC wherein the main accused has already been acquitted namely Nadir and in this case also Nadir is on bail. Learned counsel submits that from the face of it, it is a case of further inquiry. Learned counsel for the applicant relied upon case of Mir Hazar Malik v. The State (1999 SCMR 1399) in terms whereof it is observed by the honourable Supreme Court that name of the applicant/accused did not transpire in the FIR and he was involved subsequently in the commission of the crime. The petition in the foresaid case was converted into appeal and the accused was enlarged on bail.
Learned counsel for the applicant relied upon on another case of Sharbat and another v. The State (SBLR 2003 Sindh 848) in terms whereof it is observed that when on merits the applicant has a good case, the abscondence alone should not come in his way for grant of bail. No doubt a fugitive from law loses some of rights but he does not lose right of bail for ever. Accordingly the bail was granted.
Lastly learned counsel or the applicant relied upon the case of Waris Mohammad v. Ahmad Yar and another (1976 SCMR 182) in terms whereof it is observed that the informant associated with investigation and suspecting three others during first 17 days and thereafter mentioned four accused including the petitioner as culprits. The explanation given by him that he was not quiet in his senses at the time of making FIR, was fit for grant of bail.
On the other hand, learned State Counsel submitted that in the statement U/S 161 Cr.P.C applicant has been specifically nominated though his name does not transpire in the FIR. However, three unidentified accused persons were given specific role and one of the three unidentified person is applicant as disclosed in statement U/S 161 Cr.P.C
I have heard learned counsel for the parties and perused the record. Prima facie at the first instance there is no name in the FIR and secondly the statement recorded U/S 161 Cr.P.C can not take the shape of first information report. Even otherwise it is a case of ineffective firing. The applicant who is booked in an offence U/S 324, 353, 368 P PC and no one is either injured nor it is reported as such. Even the police mobile was not stated to have suffered from any effective or ineffective firing. The judgment cited by the learned counsel for the applicant are identical on the point and the touchstone of the principle laid down in the above referred case law. The applicant is entitled for bail before arrest. Bail is granted to the applicant subject to furnishing solvent surety of Rs.200,000/= and P.R bond in the like amount to the satisfaction of trial Court.
JUDGE