1. ' Applicant Azmat son of Aalmoon Bugti is facing trial before the Judge, Anti-Terrorism Court-I, Sukkur and Larkana Divisions, at Sukkur.
2. ' Briefly stated the relevant facts are that on 2-5-2004 Ghazi Anwar, Deputy Chief Manager, Sui Southern Gas Company, Incharge Shikarpur Headquarter, lodged F.I.R. No,30 of 2004 at Police Station Tangwani, District Jacobabad, which reads as follows:- "The complaint is that I am working as Deputy Chief Manager in Sui Southern Gas Company and am Incharge of Shikarpur Headquarter. Today on 2-5-2004 at 0615 hours our G-Station operators Zahro Khan Jakhrani and Wahid Bakhsh Jakhrani have informed me through mobile phone that near Village Hajano Deh Hajano, 20 inch pipeline has been blasted with explosives. On receipt of such information, I along with my Security Manager Captain retired Parvez Ahmed Kakar proceeded and reached at the place of explosion at 0930 hours, where we saw that 20 inch pipeline was blasted with some explosive substance, by some unknown terrorist accused persons, whereby they have caused heavy damage to the company and Government. Now, proceeding from there, and presenting ourselves at Police Station, complain that unknown terrorist accused persons by act of terrorism and sabotage have blasted above mentioned pipeline with some explosive substance, thereby caused damage to the company and Government. I am complainant and seek investigation."
3. ' The interim challan was submitted in A.T.C. Court on 2-7-2004 against the applicant Azmat, Todo alias Dado alias Kaloo, Majoo alias Abdul Majeed alias Riaz. Five accused persons were shown as absconders. The witnesses cited in the interim challan were complainant Ghazi Anwar and P.Ws.
4. Wahid Bux, Zahro, Khan, S.I.P. Waseeng Khan Dahani, PC Ghulam Shabbir and PC Irshad Ali. In the list of reserved witnesses, P.Ws. Parvez Ahmed Kakar, PC Shafi Muhammad, PC Mumtaz Ali, PC Bakhshan Khan and Inspector Lal Bakhsh What were cited.
5. ' The charge has not been framed as yet by the learned trial Court.
6. ' The bail application submitted before the trial Court has been rejected. An earlier bail application submitted before this Court was not pressed, which was disposed of as withdrawn on 10-11-2005.
7. ' We have heard Mr. Muhammad Ayaz Soomro, learned counsel for the applicant, Mr. Mushtaq Ahmed Abbasi, learned Assistant Advocate-General, for the State and Mr. Imdad Ali Awan, learned counsel for the complainant.
8. ' Mr. Muhammad Ayaz Soomro has submitted that according to F.I.R., it is an unwitnessed incident, as no accused is named in the F.I.R. He has further contended that in the original challan P.Ws.
9. Rano and Dost Muhammad were not cited as witnesses, but it is alleged by the prosecution that their statements were recorded on 2-5-2004 under section 161, Cr.P.C., in which they have stated that several persons including accused Azmat Bugti were seen by them near Sui Southern Gas Pipeline. Accused Azmat Bugti was armed with Rocket Launcher and other culprits were armed with klashnikovs. They have stated that in their presence and sight applicant Azmat Bugti fired the rocket at the gas pipeline with the impact thereof the gas pipeline was exploded and a crater measuring about 5 feet was created.
10. ' Mr. Muhammad Ayaz Soomro has submitted that the statements of P.Ws. Rano and Dost Muhammad have been subsequently manipulated, in which the applicant has been falsely implicated. In support of his contention he has submitted that if statements of these two witnesses were available with the police on 2-5-2004 as alleged, there was no reason for non-citing of these two witnesses in the interim challan, which was submitted on 2-7-2004. He has further contended that there is no recovery from the applicant and he is in custody since 17-6-2004.
11. ' The learned Assistant Advocate-General, has opposed the grant of bail to the applicant on the ground that there are statements of two eye-witnesses, namely, Rano and Dost Muhammad, which were recorded on 2-5-2004.
12. ' In order to ascertain and verify the recording of statements of P.Ws. Rano and Dost Muhammad, we have examined the police papers. A perusal of the case dairy dated 2-5-2004 shows that the statements of P.Ws. Rano and Dost Muhammad were not recorded on the said date and A police was not aware of the names of the culprits. The diary contains that police spies were left and statements of P.Ws. Zahro Khan Jakhrani, Wahid Bakhsh Jakhrani and Parvez Ahmed Kakar were recorded. These three witnesses have not implicated any specific person in the commission of offence. The Investigating Officer then contacted Nekmards of the area and pressed them for giving information about the culprits. Similar case diaries have been recorded on 15-5-2004, 28-5- 2004 and 7-6-2004. On 14-6-2006 it has been shown for the first time that the police spies disclosed that a notorious criminal Azmat son of Aalmoon Bugti has committed the offence along with his companions for the purpose of causing terror. The case diary dated 16-6-2004 contains that accused Azmat is a big terrorist, against whom cases have been registered at several police stations and he leaves Sindh for Balochistan after commission of offences. On 17-6-2004 the Investigating Officer came to know that applicant Azmat has already been arrested by Rasaldar Police in Crimes Nos.7 of 2004 and 32 of 2004 and he was lodged in Police Station Kingrani. He was, therefore, arrested from the police lock-up Kingrani and was interrogated. At the end of police file two statements of P.Ws. Rano and Dost Muhammad are available, which allegedly recorded on 2- 5-2004. This statement was allegedly recorded by same Investigating Officer S.I.P. Waseeng Khan Dahani with the endorsement in the margin "before me" by Taluka Police Officer, Tangwani.
13. ' Mr. Imdad Ali Awan, learned counsel for the complainant has submitted that the applicant is alleged to have committed a very heinous offence, which is crime against the State and the charge could not be framed by the trial Court because the police papers were called time and again by the High Court. A perusal of the record of this Court shows that first bail application was submitted on 10-10-2005, which was disposed of as not pressed on 10-11-2005 and this second bail application has been submitted on 21-2-2006.
14. ' Mr. Awan has further submitted that complainants were not satisfied with the investigation and, therefore, they made several complaints to the higher Police Officers in the hierarchy of department. He has submitted that with the mala fide intention the statements of P.Ws. Rano and Dost Muhammad have not been shown in the case diaries recorded by the Investigating Officer. He has urged that since a heinous offence has been committed, therefore, bail application be rejected and the trial Court be directed to proceed with the case and conclude the trial within one month.
15. ' We have carefully considered the contentions raised by the learned Advocates for the parties and the entire material on record as well as on the police file. At this stage, we would not like to make any observation about the merits of the case, as it is likely to cause prejudice to any party before the trial Court. The questions whether it was mala fide on the part of Investigating Officer or not disclosing in the case diary about the recording of 161, Cr.P.C. Statements of P.Ws. Rano and Dost Muhammad and what was the reason for recording of their statements before the T.P.O. When the statement of no other witness has been recorded in his presence, and that there was mala tide on the part of the Investigating Officer, therefore, complaints were made to the higher Police Officer, therefore, shall be considered by the trial Court. However, if the statements of eye-witnesses were recorded, the T.P.O. Ought to have recorded the statements himself instead of making endorsement of "before me". Under section 551, Cr.P.C. Police Officer superior in rank to an Officer Incharge of police station may exercise the same powers, throughout the local area to which they are appointed, which may be exercised by such officer within the limits of his station. Thus, if there were complaints against the conduct of Investigating Officer, the T.P.O. Could record the statements of the eye-witnesses himself and should have given the correct date of recording the statements of those witnesses. This point shall also be considered by the trial Court, ' Mere allegation of commission of heinous offences or person being involved in other cases, is not sufficient to withhold the bail; as every case is to be considered on its own merits. It is also established principle of law that an accused person is entitled to benefit of doubt even at the stage of bail.
16. ' Without dilating in details, we would merely like to observe that the facts and circumstances from the perusal of police file are such that the applicant appears to be entitled to be released on bail.
17. Consequently, the applicant is granted bail in the sum of Rs,5,00,000 and P.R. Bond in the like amount to the satisfaction of learned trial Court.
18. ' The learned trial Court is directed to proceed with the case without any delay. The learned Additional Advocate-General is directed to return the police papers immediately to the learned trial Court.