' SHAHID ANWAR BAJWA, J.--- F.I.R. No,227 of 2010 was recorded at Police' Station, Bhiria City, on 25- 12-2010 for an incident alleged to have taken place earlier that day. Complainant was LPC Ghulam Rasool Khoso of Police Station. Fareed Dero. Complainant stated that he was 'Naib Moharar' at Police Station, Fareed Dero and he along with SIP Roshan Ali Khokhar SIO of that police station and a police constable duly armed went for investigation of an offence under section 489-F, P.P.C. And on the way they came to know that the wanted accused Muhammad Hassan and Nawab Memon, respectively applicant No,2 in Criminal Bail Application No,S-170 of 2011 and the applicant in Criminal Bail Application No,S-458 of 2011 (hereinafter respectively referred to as Hassan and Nawab) were standing in a guava garden. The police party went to Police Station, Bhiria City and from there two police constables accompanied the police party for help and went towards the pointed place. As they reached there, they saw Hassan and Nawab standing there and with them was Loung (applicant No,1 in Criminal Bail Application No,S-170 of 2011 hereinafter referred to as Loung) and one named and 10 unknown persons plucking guavas. SIP Roshan Ali Khokhar and other staff jointly nabbed Hassan and tried to apprehend Nawab who went inside the guava garden. SIO Roshan Ali Khokhar appointed two police constables as mashirs of arrest and started preparing mashirnama of arrest of Hassan when Nawab Loung and others armed with lathies came and asked SIO to release Hassan. When SIO refused, Nawab and Loung and their companions attacked police party. Nawab is alleged to have given lathi blow to SIO Roshan Ali Khokhar on the upper side of his nose near eye. SIO Roshan Ali Khokhar fell down. Loung is alleged to have caused him kicks and hit him on his jaw. Co-accused Ayaz snatched mashirnama of arrest of Hassan. Other co-accused tore shirts of police party and took away Hassan and escaped. SIO Roshan Ali Khokhar was shifted to hospital but he expired on the way.
2. Learned counsel for the applicants submitted that co-accused Ayaz has been-granted bail by the trial Court and other 10 persons have been released by the Magistrate. Learned counsel referred to the postmortem report and submitted that death has been scribed to injury No,4 which is described as "bleeding from right ear". Learned counsel submitted that the death has been caused by internal haemorrhage of brain cavity caused by falling down of deceased Roshan Ali Khokhar. Learned counsel submitted that it is not a case where it can be alleged that the applicants preplanned the incident. He submitted that there were five police officers armed with deadly weapons and none of them took any step or used any arm to apprehend the accused persons. This seems highly improbable. He submitted that although Nawab was arrested on 29-12- 2010 but nothing has been recovered from him so far and as far as Hassan and Loung are concerned they have been granted pre-arrest bail by this Court vide order dated 18-2-2011 and they have been regularly attending the trial Court and there is no allegation that they have in any way misused the concession of bail.. Learned counsel relied upon Arshad v. State (1999 PCrLJ 611), Meeran Bux v. State (PLD 1989 SC 347) and Shafi Muhammad v. State (1990 PCrLJ 1157).
3. Mr. Shyam Lal, learned Assistant Prosecutor-General submitted that as far as applicant Hassan is concerned, on the principle of consistency because his role is A same as that of Ayaz who has been granted bail by the trial Court, he would not oppose this bail application. Regarding co- accused Nawab, he submitted that allegation against him is that he caused the injury which led to death of SIP Roshan Ali Khokhar. He further submitted that lathi has been recovered on the pointation of Nawab on 1-11-2011. Regarding Loung he submitted that Injury No,3 (two abrasions measuring 1 cm x 1 cm each apart from each other, at the chin) is attributed to Loung and he played an active role in attacking a public servant while the latter was busy in performing his public duties.
4. I have considered the submissions made by the learned counsel and have also gone through the record.
5. In Arshad's case (supra), the facts were that. Co-accused Farman Ali and his sons were alleged to have been annoyed with deceased Abdullah over marriage of a girl and on the fateful day when the complainant, his brother deceased Abdullah and other two persons had gone to their fields, they saw the applicant and 9 other persons. One co-accused challenged Abdullah. Thereafter it was alleged that co-accused gave lathi blows to deceased and the prosecution witness. One co- accused fired at the deceased. A single Judge of the High Court observed that no overt act is attributed to the applicant Arshad. In Meeran Bux's case (supra), it was alleged that four persons including Meeran Bux committed murder of Badshah Dino and made murderous assault on Jam Khan. Meeran Bux was alleged to have fired directly on. Badshah Dino causing injury on his left leg and thigh while others are alleged to have fired and caused other injuries. The Sessions Court granted bail on the ground that injury was on a non-vital part of the body. High Court cancelled the pre-arrest bail. The matter was remanded by the Supreme Court to the High Court. In Shafi Muhammad's case (supra), it was stated in the F.I.R. That applicants were though armed with guns but had not fired with guns and injured the eye-witness and it were two other accused person 'who used their firearms. The cases are clearly distinguishable and turn on their peculiar facts.
6. In the present case as far as accused Loung is concerned allegation against him is that he gave kick blows to the jaw of SIO Roshan Ali Khokhar. The medical evidence says that there are only two abrasions measuring 1 cm x .1 cm each apart from each other, at the chin. Moreover the applicant Loung was granted pre-arrest bail by this Court vide order dated 18-2-2011. Learned counsel for the applicants placed on record copies of the diary sheet of the Court below and it reveals that the applicants have been regularly B attending the Court below. Therefore, as far as Loung is concerned he is entitled to bail. As far as Nawab is concerned, the allegation against him is that he used lathi to give a blow to SIO Roshan Ali Khokhar. Now there were four 'police personnel besides Roshan Ali Khokhar, all of them duly armed and all of them had gone to arrest two persons and none of them used any force to prevent the alleged act. It is stated in the F.I.R. That shirts of the police officers were torn by the co-accused persons and not a single word is stated that any of the firearm was snatched from the police officers or was taken away by any of the accused persons.
No any grappling by four police personnel is stated with a band of ten which band had no one armed with a firearm. This absolute inaction, rather imbecility (I would hesitate to use the word idiocy) on part of the police creates doubt.
7. Result of the above discussion is that bail already granted to Hassan and Loung is confirmed on the same terms and applicant Nawab is ordered to be admitted to bail upon his executing a PR bond for a sum of Rs,300,000 (three hundred thousand only) with one surety in the like amount to the satisfaction of the trial Court.