1. ' MUHAMMAD ATHAR SAEED, J.---This bail application has been filed praying for the release of the applicant on bail who has been arrested in crime No,16/2007, registered at Police Station Dokri on 14-4-2007 at 1810 hours.
2. ' Brief facts of the case as narrated in the F.I.R. Are that the complainant Inspector/TPO Manzoor Husain Jokhio of Dokri Police Station left the Police Station in police uniform in Government vehicle along with his police staff members including the driver and when they reached Channa Bridge, they spotted a motorcycle occupied by three persons, two of whom were armed with Kalashinkov.
3. These persons, on seeing the police mobile, attempted to escape towards south along with Sonehri Miner Canal The police vehicle followed then and when it reached near them, one of the persons allegedly jumped from the motorcycle and started firing on the police party as such, the motorcycle went out of their control and fell in the watercourse. According to complainant, the police also started firing in defence after getting down from the vehicle and also conveyed the message to control and sought police assistance. It has further been alleged that the firing continued for some time and after that DPO, Larkana, TPO, Bakrani with their staff, S.H.O. Dokri Police Station with staff and S.H.O. Airport Police Station with staff arrived there and the accused were surrounded and on seeing such massive police force the accused-surrendered after placing their weapons on the ground and raising hands. The police arrested all the three accused- including the applicant with their weapons which included two Kalashnikovs which were surrendered by the two co-accused and one .30 bore pistol in working condition along with four live rounds surrendered by the applicant. The mashirnama was prepared at the spot and S.H.O. Police Station Dokri Imtiaz Ahmed, Qazi and S.H.O. Police Station Airport Abdul Rasool Shaikh, acted as mashirs. The motorcycle was also recovered from the watercourse articles Were inspected in presence of above named mashirs.
4. ' I have heard Mr. Sarfraz Jatoi, learned counsel for the applicant and Mr. Muhammad Ismail Bhutto, learned State counsel.
5. ' The main argument of the learned counsel for the- applicant is that the alleged incident has not taken place and has been managed and the weapon has been foisted upon the applicant. He further submitted that it is difficult to believe that the firing took place for more than ten minutes but no one from either side was injured nor any bullet hit the number- of police mobiles which were alleged to be present at the place of incident. He further read from mashirnama and pointed out that 21 empties were alleged to have been recovered from the scene of incident and all these empties were of 7.62 bore which means that they were the empties fired from Kalashnikov and not from .30-bore pistol which was allegedly recovered from the possession of the applicant. He further said that, in view of the admitted fact, narrated in the mashirnama, it is prima facie clear that the .30-bore pistol which according to him, has-been foisted upon the applicant, was not used during the firing and therefore, prima facie there can be no allegation against the applicant for taking part in the firing. He further pointed out that the incident has been alleged to have occurred at about 1705 hours which is evening time and on a busy thoroughfare where there are usually number of private persons available but no private mashir has been drafted to sign mashirnama and both the mashirs are Police Officers. According to learned counsel, the mashirnama has been prepared in violation of section 103 of the Criminal Procedure Code, in which it has been provided that the police will arrange for private mashirs and if, for some reasons, the private mashirs are not available or they refuse to act as mashirs then the Police Officers record this point in his mashirnama before drafting police officials as mashirs. In support of his contention that in view of the circumstances of the case the applicant was entitled to bail, the learned counsel relied on the following judgments:--
(1) Rab Nawaz v. The State (1990 SCM R 1085), (2) Rano v. The State (1994 PCr.LJ 1216), (3)
6. Muhammad v. The State (1990 SCMR 454), (4) Attaullah v. The State (1999 SCM R 1320), (5) Faraz Akram v. The State (1999 SCM R, 1360) and (6) Waryam v. The State (2006 PCr.LJ 1611).
7. ' Mr. Muhammad Ismail Bhutto, learned counsel for the State opposed the bail application and submitted that the applicant has been caught red-handed after he has resorted to firing on the police officials and a .30-bore pistol had been recovered from him and therefore no further inquiry is required. He however, conceded that in the mashirnama it is mentioned that 21-empties have been recovered which are of 7.62 bore bullets discharged by firing with the Kalashnikov and no empties have been recovered from the scene of wardat which can be fired from .30-bore pistol.
8. ' I have examined the case in the light of arguments of the learned counsel and perused the record of the case including the F.I.R. Order refusing bail passed by the Sessions Court and the judgments relied on by the learned counsel for the applicant.
9. ' From the contents of the mashirnama it has been seen that no recovery of any empties have been shown which can be said to have been fired from .30-bore pistol. Even otherwise, the fact that no , one was injured in the firing which went on more than ten minutes and no allegation has been made that any bullet hit any of the police mobiles which were allegedly present on the scene of the incident creates serious doubt whether such extensive firing had taken place.
10. In the case of Rab Nawaz v. The State quoted supra, the Honourable apex Court held as under:-- ' ".... In this background and in view of the absence of any bullet injury, the fact whether the petitioner did intentionally fire at the police party, but was unsuccessful to hit anybody, because the bullet missed or the case has been padded by the inclusion of this false firing, assumes prominence and since this matter cannot be determined, till proper evidence is recorded in the case, we would, taking all circumstances into consideration, allow bail to the petitioner."
11. ' In the case of Faraz Akram v. State, quoted supra, the Honouable Supreme Court held as under:--- ' "In support of this petition, it was contended that no overt act had been ascribed to the petitioner save for ineffective firing, which also stands disproved because no empty was recovered. It was further argued that only Hasnain was attributed fatal blow and the petitioner had nothing to do.
12. The circumstances thus revealed that it was only Hasnain, who had fired the fatal shot. The question of vicarious liability of the petitioner will be determined at the trial. In this view of the matter, it is a case of further inquiry covered by section 497(2), Cr . P.C "
13. ' The other cases relied on by the learned counsel for the applicant also support the contention that wherever ineffective firing has been alleged, the Courts have been inclined to grant bail to the accused persons. Respectfully subscribing to the judgments of the Honourable Supreme Court and the other judgment relied on by the learned counsel, I am of the considered opinion that the case requires further enquiry to connect the applicant with the offences and such enquiry can only be conducted at the trial on the basis of evidence produced and therefore, the applicant is entitled to bail.
14. ' For the foregoing reasons I had, vide my short order, passed in Court on 26-6-2007 after hearing the learned counsel, admitted the applicant to bail on furnishing solvent surety of Rs,1,50,000 along with P.R bond in the like amount to the satisfaction of the trial Court.
15. ' The applicant is directed to cooperate with the trial Court and attend every hearing of the case failing which, this concession of bail may be cancelled.
16. ' This bail application is disposed of in the above terms.