1. Granted, subject to all just exceptions.
2. This application for bail for the accused Muhammad Asif and Akram arises under the circumstances that Sub-Inspector of Police Muhammad Javed alongwith the police officials, namely, Muhammad Raees, Athar A.I, Hashim, Taj Muhammad and Waqar Hussain while conducting duty of patrolling the Illaqa, reached A.I Akbar Shah Goth. They found some persons duly aimed sitting there and on seeing the police party they started firing at the police. The police returned firing and ultimately succeeded in apprehending accused Muhammad Asif, Akram and.
Noorul Ameen. Noorul Ameen found a bullet injury on his left arm. From the possession of Muhammad Asif, a loaded mouser was recovered while from Akram .30 bore pistol and two bullets were recovered. From the possession of Noorul Ameen, the injured accused, a two-- edged dagger was recovered. All the arms in possession of these accused were unlicensed and, therefore, separate cases for offence under section 13-D, Arms Ordinance were also lodged against the said accused. The other accused, who are, said to have escaped due to darkness, were named as Shamsuddin, Muhammad Yousuf and Muhammad Hussain. 'rhe police brought Asif. Akram and Noorul Ameen at the police station and registered the case against them and produced a challan against them for offence under sections 399, 402, 353, 336, P.P.C. An application for bail for the present applicants Muhammad Asif and Akram moved before the Court of Sessions Judge, Karachi East has been dismissed and, thereafter the applicants have filed the present application.
Mr. Ghulam Mustafa Memon, learned counsel for the applicants and Mr. Ameer Hani, learned, AA.- G. For the State, have been heard. Learned counsel for the applicant has argued:---
(1) That section 399 is not applicable under the circumstances of this case as the only allegation of the prosecution is that the police found the applicants sitting duly armed and no other evidence has been collected by the police to show as to what preparations for committing dacoity were made by the applicants. Besides, there is scanty evidence of only police officials on this point and no public person is cited as witness in this case. The learned counsel has relied upon a case of Ameer A.I Khan v. The State, decided by Division Bench of this Court, reported in 1994 PCr1J 576. As in the present case, in the reported case also assembly of 5 armed persons was found by the police and sections 399 and 402 were applied on which the Division Bench consisting of their Lordships Haziqul Khairi and Akhtar A.I Kazi, JJ. (as they then were) had observed `that the assembly of 5 armed persons by itself would not constitute preparation for dacoity and, therefore, it is a case which requires further enquiry'. The said Division Bench had referred to the cases reported in 1990 PCr.LJ 41 and 1989 PCr.LJ 2314 and other Indian Cases. The facts of this case are not much different from the \ facts of the above-cited case.
(2) That section 336 will also not apply as no person from the police party had sustained any injury and the injury on the person of injured accused Noorul Ameen is not attributed to any of the applicants by the in injured himself. It is only the allegation made by the police and not the injured.
Even otherwise if it is contended that the applicants had fired at the police, it was the case of ineffective firing and in such cases, the case of Gul Saeed v. The State, reported in 1977 PCr.LJ 607 comes to f the help of the applicants. In this case, bail was granted when ineffective firing was made at the complainant. In addition, the case of Qayyum Khan v. The State, reported in 1993 PCr.LJ 675, provides that the attempt per se would not bring a case under section 307, P.P.C. And the story of the police encounter based on the evidence of two police officials was held, `should have been subjected to a careful scrutiny before acting upon the same to the detriment of the accused'.
Learned counsel appearing for the State Mr. Ameer Hani has, however, opposed the grant of bail to the applicants and contended that in the circumstances of this case, the bail should not be granted.
Consequently, I find that the consensus of the decided cases cited above goes in favour of the applicants and, therefore, I allow this bail application. The applicants be released on furnishing one surety in the sum of Rs.50,000 (Rupees fifty thousand) each and P.R. Bond in the like amount to the satisfaction of the trial Court.