1. ' MUHAMMAD HUMAYON KHAN, J.---By this single order we will dispose of Cr. Bail Application No, D- 57 of 2016 and Cr. Bail Application No, 125 of 2016 filed on behalf of applicants/accused Jaleel Ahmed, Mansoor, Asif, Arshad, Ghulam Shabbir, Deedar and Jhandal for offences under sections 324, 353, 148, 149, P.P.C. Read with section 7 of Anti-Terrorism Act, 1997 and connected Cr. Bail Applications Nos.D-126/2016, D-127/2016, D-128/2016, D-129/2016, D-130/2016, D-131/2016 and D- 132/2016 moved on behalf of above named applicants/accused in the aforesaid crime numbers of Police Station Agra under section 23(1)(a) Sindh Arms Act, 2013.
2. ' Brief facts of the prosecution case as disclosed in the FIR are that on 07.08.2015 at 1730 hours complainant ASI Amanullah Maitlo lodged FIR stating that he along with his staff left Police Station for patrolling when reached at Ghero Shakh bridge where received spy information regarding availability of accused Ali Raza along with 17 others, who are wanted in Crime No,43/2015 under sections 302, 120-B, 147, 148, 149, P.P.C. And 7, A.T.A. Of Police Station Agra and in another crime No,99/2015 under section 324, 353, 224, 225, 148, 149, P.P.C. Read with 7, A.T.A. Of Police Station Sobhodero, at Jado Wahan. Thereafter, complainant along with his subordinates reached at Jado Wahan on Kamal Dero link road near abandoned Government tube well, saw 18 accused persons armed with weapons. It is further alleged that the accused made direct firing upon police party with intention to kill them. In retaliation complainant party also made firing in defence. Such encounter was continued for seven minutes. The Police party succeeded to arrest 14 accused persons namely Faiz Muhammad, Dinal alias Dino, Jhandal, .Mansoor, Mehar, Insaf, Muhammad Ramzan, Jaleel Ahmed, Asif, Arshad, Ghulam Shabbir, Deedar, Zikir Ali and Bhagial and pistols were recovered from arrested accused while other accused made their escape good. The recovered weapons and empties from the place of vardat, ultimately police brought the arrested accused persons along with crime weapons at police Station Agra and lodged FIR crime No,49/2015 while separate FIRs in respect of recovery of unlicensed crime weapons were also registered against arrested accused on behalf of State.
3. ' Bail applications on behalf of applicants/accused in the main case as well as under sections 23(1)
4. (a), Sindh Arms Act, 2013 were moved before learned Judge of Anti-Terrorism Court, Khairpur, the same were rejected vide Orders dated 15.12.2015 and 12.01.2016, 02.02.2016 and 18.02.2016. Thus, the applicants/ accused have approached this Court for grant of post-arrest bail.
5. ' Messrs J. K. Jarwar and Sher Muhammad Shar learned advocates for applicants/accused contended that despite cross firing with sophisticated weapons not a single injury was caused to the either party, though firing lasted for seven minutes. It is argued that number and company of the pistols are not mentioned in the mashirnama as well as in FIR. It is next contended that applicants/accused are in custody for more than one year even charge has not been framed against them. Lastly it is argued that all the applicants/accused belong to one and same family and they have been involved falsely for the political rivalry and case against the applicants/accused is highly doubtful and benefit of doubt can be extended to the applicants/accused even at bail stage. Learned advocate for applicants has placed reliance upon the cases of Rab Nawaz v. The State (1990 SCM R 1085) and Syed Arshad Ali Shah Bukhari v. The State (2011 SCM R 1644).
6. ' Mr. Saleem Akhter Buriro Additional P.G. Recorded no objection for grant of bail to the applicants/accused in the main case bearing Crime No, 49 of 2015 of Police Station Agra under sections 324, 353, 148, 149, P.P.C. Read with section 7 of Anti-Terrorism Act, 1997, however, regarding recovery of the pistols from the accused is concerned he argued that alleged offence under section 23(1)(a) of Sindh Arms Act, 1997 is falling under prohibitory clause of section 497, Cr.P.C, thus opposed the bail applications in these crimes. Learned Additional P.G. Has admitted that report of ballistic expert has not been received yet.
7. ' Firstly we discuss bail application moved in Crime No,49 of 2015 of Police Station Agra under sections 324, 353, 148, 149, P.P.C. Read with section 7 of Anti-Terrorism Act, 1997. It is a matter of record that investigation is complete and accused are no more required. All the P.Ws are police officials, there is no question of tampering with the evidence as accused are in custody since 07.08.2015. Mr. Sher Muhammad counsel for the applicants stated at Bar that charge has not been framed. From both sides none has received any injury or scratch during the incident, even no damage was caused to the police mobile. In support of his arguments, learned counsel for the applicant/accused reliance has been placed upon the case of Rab Nawaz v. The State (1990 SCM R 1085), wherein; the honourable Supreme Court has held as under:- "In this background and in view of absence of any bullet injury, the fact whether the petitioner did intentionally fire at the police party, but was unsuccessful to hit anybody, because the bullet missed, or the case has been padded by the inclusion of this false firing, assumes prominence and since this matter cannot be determined, till proper evidence is recorded in the case, we would, taking all circumstances into consideration, allow bail to the petitioner. ' and in another Judgment of honourable Supreme Court in the case of Syed Arshad Ali Shah Bukhari v. The State and others, it is held as under: "As regards the offence. Under section 324, P.P.C., the petitioner and his co-accused had allegedly resorted to firing at a police party and 25 crime-empties had statedly been recovered from the place of occurrence but admittedly no such crime empty had been sent to the Forensic Science Laboratory for comparison with the pistol allegedly recovered from the petitioner's possession. It is also not disputed that none from the complainant/police party had received even a scratch on his body during the incident in issue and the allegation leveled in the FIR regarding giving a beating to the members of the police party was not supported by any Medico-legal Certificate. In these circumstances applicability of the provisions of section 324, P.P.C. To the case in hand prima facie appears to be suspect.
8. ' In the case of Syed Amanullah Shah v. The State and another reported in (PLD 1996 Supreme Court 241) Hon'ble Supreme Court observed as follows.
9. "So whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth/probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail. In such a situation, it would be better to keep an accused person on bail then in the jail, during the trial."
10. Apparently, reasonable doubt arises with regard to participation of large number accused belonging to same family in the aforesaid crime about the truth of prosecution case, false implication of accused cannot be ruled out at this stage. Accused cannot be deprived of benefit of bail who are in continuous detention for the period of more than one year. In such a situation, it would be better to keep the accused persons on bail than in Jail, during trial as held in the case of Syed Amanullah Shah supra.
11. ' From tentative assessm ent and material available on record While respectfully relying upon the above cited authorities for above stated reasons we hold that case against the applicants/accused prima facie, requires further enquiry as contemplated under section 497(2), Cr.P.C. Therefore, concession of bail is extended to the applicants/accused Jaleel Ahmed Mansoor, Asif, Arshad Ghulam Shabbir, Deedar and Jhandal in the main case Crime No, 49 of 2015 for offence under sections 324, 353, 148, 149, P.P.C. Read with section 7, Anti-Terrorism Act, 1997 subject to furnishing solvent surety bond in the sum of Rs,100,000/- (one lac) each and PR bond in the like amount to the satisfaction of trial Court.
12. So far as the bail applications Nos. 57 of 2016 and 125 of 2016 are concerned, we have granted bail in the main case and applicants/accused are in custody for the period of more than one year, yet there is no progress in the trial. P.Ws are police officials, there is no question of tampering with the evidence. It is informed that yet charge has not been framed, contentions of learned Additional P.G that alleged offence falls within prohibitory clause of section 497, Cr.P.C. It is observed that Court while hearing bail is not to keep in view the maximum sentence provided by the Statute but the one which is likely to be entailed in the facts and circumstances of the case. In the case of Jamaluddin alias Zubair Khan (supra) the honourable Supreme Court has observed as under:- "Without entering into the merits of the case, as the quantum of sentence has to be commensurate with the quantum of substance recovered, we doubt the petitioner can be awarded maximum sentence provided by the statute. Needless to say that the Court while hearing petition, for bail is not to keep in view the maximum sentence provided by the Statute but the one which is likely to be entailed in the facts and circumstances of the case. The fact that petitioner has been in jail for three months yet commencement of his trial let alone its conclusion is not in sight, would also tilt the scales of justice in favour of bail rather than jail."
13. Prima facie, case against the applicants/accused requires further enquiry as provided under section 497(2), Cr.P.C. In these circumstances liberty of applicants/accused cannot be curtailed without legal justification while relying upon the case of Jamaluddin alias Zubair Khan (supra), therefore, concession of bail is extended to the applicants/accused Jhandal, Mansoor, Insaf, Asif, Arshad, Ghulam Shabbir and Deedar Ali in the off shoot cases in Crime Nos. 52, 53, 55, 58, 59, 60, and 61 of 2015, registered under sections 23(1)(a), Sindh Arms Act, 2013 of Police Station Agra registered against them respectively, in the sum of Rs,50,000/- each and PR bond in the like amount to the satisfaction of trial Court.
14. ' Needless to mention that above observations are tentative in nature. Trial Court shall not be influenced by such observations while deciding the cases on merits.