' SHAHID ANWAR BAJWA, J.--- F.I.R. No.243 of 2011 was recorded at Police Station; Pano Akil on 17-8- 2011 at 1230 hours for an incident alleged to have occurred two days and one hour earlier.
Complainant was PC Meenhon Khan. He stated that he and his cousin PC Muhammad Ali, the deceased, were both posted at Police Station, Dadloi. With their arms they went from Police Station and stood at a Naka at National Highway. The complainant had to answer a call of nature and while he was doing so he heard cries of the deceased and he stated that he saw in the light of the Vehicles the present applicant being empty handed along with 5 other persons, 2 of them unidentified and all of them except the applicant duly armed. It was next alleged that the present applicant instigated the others and on his instigation co-accused Abdul Jabbar fired straight at the deceased, who raised cry and fell down and another co-accused robbed official rifle from the deceased. The complainant proceeded towards the accused but co-accused Altaf is alleged to have fired at the complainant. The fire did not hit the complainant and all the accused went away.
Due to fear of arms the complainant did not chase them.
2. Learned counsel for the applicant submitted that there, is two days and one hour's delay in lodging of the F.1.R. He next submitted that identification in the light of vehicle is always a weak type of identification. Learned counsel referred to a news clipping where it was stated that deceased had been killed while having tea at a Hotel. Learned counsel submitted that on 22-8-2011 Criminal Miscellaneous Application No.488 of 2011 was filed by one Zaheer Hussain alleging that the present applicant along with ten others had been illegally detained by police. On such application a raid Commissioner was appointed who conducted raid and recovered the alleged detenus from an Otaq. Consequently vide Order dated 24-8-2011 DIG Police was directed to order enquiry by a Senior Police Officer and to submit report. Learned counsel submitted that after such enquiry show-cause notices under section 3 of the Removal from Service (Special Powers) Sindh Ordinance, 2000 were issued to SDPO Pano Akil, S.H.O. Police Station, Salehpat, S.H.O. Police Station, Dadloi and S.H.O. Police Station, Baiji Shareef. Learned counsel relied upon Tariq Zia v. The State.
(2003 SCM R 958), Yaroo v. The State (2004 SRMR 864) and Mumtaz Hussain and 5 others v. The State (1996 SCM R 1125).
3. Learned D.P.-G. Vehemently opposed the bail application and submitted that the applicant had been nominated in the F.I.R. With specific role. He submitted that Criminal Miscellaneous Application in this Court was filed on 22-8-2011 whereas F.I.R. Was registered on 17-8-2011. He .Submitted that deeper appreciation of evidence cannot be taken at the bail stage. Lastly he submitted that it is a heinous offence in which police constable while in uniform and on duty has been done to death.
4. We have considered the submissions made by the learned counsel and have also gone through the record.
5. As stated above the Incident occurred on 15-8-2011 at 2045 hours and F.I.R. Was registered on 17- 8-2011, at 1230 hours. There is no explanation whatsoever as to why two days were taken in registering of F.I.R. For a case in which a Police Constable had been done to death. This creates the first doubt.
6. In the F.I.R. It is stated that complainant had gone to urinate when he heard cries and looked back. Then it is stated that he saw six persons, he saw present applicant giving a Hakal and he saw co-accused Abdul Jabbar firing at the deceased. Now the cry was raised when fire hit the deceased. When the complainant was busy in urinating how could he have seen as to who gave the instigation and if he had heard some one giving instigation then his attention should have been attracted by the sound of Hakal rather than by cries which followed the Hakal and if the sound of Hakal did not attract his attention how could he state that as to who instigated. This creates second doubt. Learned D.P.-G. Relied countered this is a question requiring deeper appreciation of evidence. In our opinion this point emerges from bare and simple reading of the F.I.R.
7. Even if the contents of F.I.R. Are taken at their face value the allegation against the present applicant is that he instigated others. In Tariq Zia's case (supra) it was alleged in the F.I.R. That the applicant raised only Lalkara and on his Lalkara the accused attacked the complainant side.
Supreme Court observed that the applicant was empty handed and has not been alleged any active/overt act in the commission of offence. It consequently observed that it would be for the trial Court to examine the evidence and determine affect of Lalakara; it allowed bail. In Yaroo's case (supra) it was alleged in the F.I.R. That Yaroo along with co-accused launched murderous assault on the complainant party resulting in death, of Ellahi Bux and inflicted injuries to Irshad Ali and the complainant. The petitioner was alleged to have been armed with a Lathi and there were general allegations against him. The Supreme Court observed that no injury is alleged to live been attributed to the petitioner before it and it allowed bail. In Mumtat Hussain's case (supra) it was alleged that the applicant was armed with deadly weapons but since only blunt injuries using wrong side of hatchet were caused, bail was allowed. In the present case the applicant is firstly stated to be empty handed and secondly it is not alleged that he caused to anyone.
8. Learned D.P.-G. In respect of contention of the applicant regarding illegal detention of the applicant and recovery on the order of this Court by a raid Commissioner submitted that application in this Court was submitted on 22-8-2011 whereas F.I.R. Had been registered a week earlier. It may be pointed out that after enquiry had been conducted by the DIG, four police officers have been issued statements o allegations in respect of the alleged illegal detention of the present applicant. Therefore this also creates doubt.
9. Result of the above discussion is that this bail application is allowed and the applicant is ordered to be admitted to bail upon his executing P.R. Bond for a sum of Rs.300,000 with one solvent surety in the like amount to the satisfaction of the trial Court.