1. ' NADEEM AZHAR SIDDIQI, J.--- Through this application, applicant seek bail in case vide Crime No,47 of 2007, Police Station Sijawal, under sections 324, 353, 34, P.P.C.
2. ' Briefly stated, the facts of the case are that, on the fateful day a police party of Police Station Sijawal including complainant S.I.P. Ghulam Muzamil Soomro was on patrolling duty, during which they received information through spy that a motorcycle robbed in Crime No,46 of 2007 of Police Station Sijawal was being driven away towards Garhi, by three armed persons, therefore, the police party held Nakabandi and started checking. In the meanwhile they noticed three persons riding on the motorcycle, out of them one had kalashnikov, while two were duly armed with pistols. They were signaled to stop. The culprits while stopping the motorcycle made straight firing upon police party, which continued for thirty minutes. During encounter one of the culprits fell down by rising cry, while rest made their escape good. The culprit who fallen down was apprehended by the police party along with pistol, who on enquiry disclosed himself to be the present applicant.
3. ' The learned trial Court declined bail plea of the applicant mainly on the ground that he is nominated in the F.I.R. With specific role of firing upon police party, and that he was apprehended on spot along with crime weapon and the robbed motorcycle in an injured condition and that there were no mala fides on the part of prosecution to falsely implicate applicant in the case in hand.
4. ' Learned counsel for the applicant mainly contended that no independent person has been cited as witness or Mashir of the alleged incident, though police had advance information. He further contended that the alleged recovered pistol was neither sealed on spot, nor it was sent to the ballistic expert. He lastly submitted that applicant has been granted bail in connected case vide Crime No,46 of 2007 of Police Station Sijawal.
5. ' Mr. Naimatullah Bhurgri, learned State Counsel has opposed this bail application, on the ground the applicant has been nominated in the with specific role of making firing upon police party, and that he was caught hold red handed on spot along with crime weapon and robbed property of Crime No,47 of 2007, of Police Station Sijawal, in an injured condition, therefore, he is not entitled for concession of bail.
6. ' I have heard the learned counsel for the parties and perused the record.
7. The allegation against the applicant is of ineffective firing upon the police party. The applicant was apprehended from the place of Wardat with empty pistol. The police has recovered only 10 empties of pistol and 15 empties of SMG from the side of the accused party. According to the F.I.R. The complainant has alone fired 105 rounds from his rifle and other members of the police party have also fired from their respective weapons. Although the police alleged that applicant has fired with intention to kill but surprisingly no injury was caused to any member of police party. The Mashirnama of Wardat has been prepared on the next date i.e, 1-8-2007, whereas the incident took place on 31-7-2007 at 1730 hours. There is no explanation on the part of the police for delaying the preparation of Mashirnama. The police has neither sealed the recoveries on the spot nor there is any material on record to show that recoveries were sent to ballistic expert for his opinion. In the F.I.R. Has been stated that firing lasted for 30 minutes and police fired more than 105 rounds out of which only 15 empties of 03 and 30 empties of SMG were recovered, and from the side of the accused only 10 empties of .30 bore. And 15 empties of SMG were recovered, which makes the case of the police doubtful. It appears A impossible that accused persons with very meagre ammunitions has engaged police party for about half an hour. Further more the applicant has got bail in Crime No,46 of 2007 of same police station registered for robbing the motorcycle on the ground that complainant and P.Ws. Have filed their affidavits that they have not identified the accused as their faces were muffled and the name of accused was given by the police at their own accord. The unexplained delay in preparing the Mashirnama, non-sealing the recoveries at the spot and non sending the recoveries to the expert made the case doubtful. Since the doubt is created, a case of further enquiry has been made out. In the reported case of S. Amanullah Shah v.
8. The State PLD 1996 SC 2412, the Honourable Supreme Court has held that where doubt creates regarding participation of the accused in the commission of crime. It is better to keep accused on bail rather to B keep him in jail, I am satisfied that there are no reasonable grounds for believing that applicant has committed a non bailable offence.
9. ' The bail application is allowed. The applicant be released on bail on his furnishing solvent surety in the sum of Rs,1,00,000 and P.R. Bond C in the like amount to satisfaction of the trial Court. In case the applicant is found misusing the bail the trial Court will be at liberty to initiate action against him in accordance with law.