1. ORDER SALMAN HAMID, J.---This is a bail application under sections 497, 498, Cr.P.C. Filed on behalf of Ibrahim son of Ali Hassan by caste kakepoto, presently confined in District Jail Shikarpur after having been booked in terms of F.I.R. No.85 of 2008 lodged at Police Station Garhi Yasin under sections 324, 379, 353, 337-11(2), P.P.C. 14 Tazir 13 ANA.
2. Briefly, for the purposes of disposal of this bail application, the facts as deduced from the F.I.R. Are that complainant is a Security Officer in PARCO. On the day of incident he along with his sub ordinate staff was on patrolling to check the PARCO Pipeline. On 27-8-2008 during checking when at about 5-30 a.m. They reached near village Maroon Kakepoto and saw one tractor along with trolley parked near Pipeline and about 15 persons were standing there. The complainant came to know that the persons had installed clip in the pipeline and were committing theft of oil. The complainant reached near the accused and identified them to be Ghulam Mustafa alias Mustoo son of Unknown Shar, Gulab son of Nazar Jeho, Qaiser son of unknown Jakhro, Hajjan son of unknown Soomro Ibrahim son of Ali Hassan Kakepoto, Haq Nawaz son of Unknown Kakepoto, Master Mukhtar Hussain son of Kamaludin Khoso armed with Kalashnikovs and 9 under persons with open faces, if seen again will be identified. The accused on seeing the vehicle of the complainant opened firing to murder them. The accused then escaped along with tractor trolley by taking advantage of darkness. The complainant saw that iron clip was installed in PARCO Pipeline. The occurrence was brought to the notice of Incharge and higher officers, including Law Enforcement Agencies and the police of Police Station Garhi Yaseen. The complainant along with police chased the accused and when reached near village Sadiq-jiwandh they saw some accused who on seeing complainant fired upon them. The encounter lasted for half an hour. During encounter one cattle grazer namely Mehtab Ali received fire-arm injury on his right leg and fell down. The stolen oil electric motor, plastic pipe, plastic tins were lying in the Otaq of Gulab leho the co-accused which were secured by S.H.O. Gahri Yaseen. Thereafter complainant came back to Police Station and lodged report.
3. After registration of F.I.R. The investigation was followed and in due course the applicant was arrested and sent up to stand trail before the Court of learned 2nd Additional Sessions Judge, Shikarpur where the bail plea advanced on his behalf was declined vide impugned order dated 17- 3-2010.
4. Heard learned counsel for the parties and perused the record.
5. While arguing learned counsel for the applicant mainly thrusted on the point that since, the complainant did not personally known the accused persons named in the F.I.R. Who belonged to a different village, he could have not known their names specifically when it was dark as mentioned by the complainant himself in the F.I.R. It was further argued by the learned counsel for the applicant that no recovery was made from the present accused and that general allegations against him in the F.I.R. Have been raised. It was further argued that though the injured namely Mehtab Ali son of Sikandar Ali Mubashar has been mentioned in the F.I.R. He has not been shown in the Challan. Finally it was argued that though the place of occurrence was 3/4 kilometers away from Police Station concerned the F.I.R. Was lodged with a delay of at least 9 hours and plausible reason for such delay has not been given. On these scores learned counsel for the applicant urged that the prosecution case against the present applicant calls for further inquiry and at this stage he is entitled to the concession of bail.
6. Learned counsel appearing on behalf of the State candidly concedes to the extent that the accused was never declared absconder as mentioned in the order dated 17-3-2010 passed by learned 2nd Additional Sessions Judge, Shikarpur and that the role assigned to the 9 accused named in the F.I.R. Is same. Out of such 9 accused two accused namely Haqnawaz son of Ghulam Nabi Kakepoto and Qaiser son of Ali Murad Jakhro have been shown in Column No.II of the Challan and have also been let of. Therefore, he impliedly concedes that grounds for bail were available in my opinion.
7. Upon perusal of the case papers and the order impugned herein, it would become abundantly clear that at least 15 persons were stated to be found at the place of occurrence by the complainant. As against this only the names of seven accused Gulab Jeho and nothing was recovered from the possession of the present applicant.
8. Keeping in view the above contradictory aspect of the matter and the fact that the accused was never declared absconder as has been mentioned in the impugned order and that out of nine accused two were let of by the police after they being shown in column No.II of the challan though role assigned to all the 7 accused was some in my opinion, case of further enquiry has been made out and therefore, the applicant is admitted to bail subject to his furnishing a solvent surety in the sum of Rs.100,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.