1. AFTAB AHMED GORAR-J,:- Through this application, the applicant seeks post arrest bail in Crime NO.66/2013 of P.S New Faujdari punishable U/S 395, 402, 399, 324, 353 PPC.
2. The facts of the prosecution case are that on 03.04.2013 the police party headed by ASI Hafizullah of P.S New Faujdari Shikarpur, during usual patrol duty, received spy information in respect of some accused assembled for commission of dacoity on which they rushed to pointed place and when at about 1015 they reached at Pir Malang Baba at Zarkhel Link Road, they found five persons including the present applicant, all having T.T pistols alongwith two unknown accused who had kept stones on the road with intention to commit offence. It is alleged in the FIR that the complainant got down from vehicle and while apprising his identity of police, warned the accused party to put down the weapons and surrender on which the accused party started firing at police party when the complainant took position retaliated firing in their self defence. Firing lasted for 10/15 mintues and thereafter accused/applicant Salman alongwith his T.T pistol and three live bullets was apprehended at the spot while rest of accused managed to escape from the scene. PC Mehboob and PC Amanulalh were associated as mashirs and the applicant/accused was arrested and in respect of the license of the pistol recovered from him, the accused disclosed that it was unlicensed. Thereafter the applicant/accused alongwith recovery property was brought at P.S where this IR was lodged alongwith a separate FIR U/S 13-DAO.
3. Learned counsel or the applicant submitted that the complainant has received spy information but still he failed to associate any private person as witness. During exchange of firing none from either side received any injury nor any bullet is said to have hit the police mobile. He further argued that the applicant was arrested from his house and the recovery of pistol has been foisted upon him by the police in order to show their efficiency. Learned counsel further argued that no any empty has been recovered from the place of wardat. He lastly prayed the prosecution case against the applicant calls for further inquiry and the applicant is entitled to grant of bail.
4. Learned State Counsel opposed the grant of bail on the ground that the applicant was nominated in the FIR and arrested on the spot and there is no enmity alleged between the applicant and the complainant/police.
5. As per prosecution case five accused persons had assembled for making preparation to commit dacoity when the police party reached at place of incident. Applicant and four others allegedly fired upon the police party and police party also fired in their defence and after exchange of firing four accused persons ran away and the present applicant was apprehended at the spot.
6. Apparently, the arrest of present applicant in the above manner as claimed by the police seems to be doubtful as for the present applicant, having similar weapon like the rest of four accused, was not difficult to escape alongwith his accomplices. It is very astonishing that the exchange of firing between the parties lasted for 10/15 minutes but none from either side received any injury nor a single bullet hit to the police mobile. Besides all this, it is also pertinent to look into that the complainant had received spy information but still he failed to associate any private person as witness from the locality when the incident has taken place in heart of Shikarpur City thus the complainant has violated the mandatory provision of section 103 Cr.P.C. The perusal of FIR does not show that the pistol recovered from the applicant was sent to the ballistic expert for its opinion whether the recovered pistol is in working condition.
7. In case of Mubeen Ali Siddiqui alias Hamayoon v. The State (1997 M LD 2479) wherein during patrolling, the complainant received spy information that five persons have assembled alongwith deadly weapons in oder to commit dacoity. As such he reached at the pointd place. On seeing police party accused persons opened fire and after brief exchange of fire police arrested three out of five in presence of private mashirs. On personal search, T.T pistols live cartridges were recovered from their possession however two accused ran away in a taxi. In the present case no private person was associated as mashir by the police to attest the alleged arrest and recovery therefore, the case of applicant appears to be rather on better footings and calls for further inquiry.
8. In view of the above discussion, case of applicant calls for further inquiry U/S 497(ii) Cr.P.C therefore, this bail application is allowed and applicant is admitted to bail vide my short order dated 06.06.2013, these are the reasons thereof.