1. ' Applicant Gulzar is involved in an offence under sections 324, 353 and 34, P.P.C. Read with section 13-D of Arms Ordinance, arising out of Crime No,33 of 1999 of Police Station Rasaldar, District Jacobabad.
2. ' The brief facts giving rise to this bail application are that on 18-9-1995 at 19-30 hours S.I.P.
3. Muhammad Sadiq recorded F.I.R. On behalf of the state alleging that on the fateful day he along with subordinate staff proceeded for patrolling. On the way, they received spy information that some absconders were to pass through the Bridge of Shahi Canal. They hold Nakabandi in Bridge and found two persons armed with Kalashnikovs approaching the bridge. On seeing the police party, they tried to decamp towards graveyard but the police surrounded them and the culprits started firing towards the police. The police returned fires and this cross fire continued for about 45 minutes. During this cross fire, the police succeeded to catch hold one of the accused namely Sono whereas another culprit Gulzar managed to escape from the scene of offence. The person so captured introduced himself as Sono. Kalashnikov and other ammunition was recovered by police from him under Mashrinamas. He disclosed the name of another culprit as Gulzar, the presnet applicant.
4. ' The police registered the F.I.R. And took up investigation and the applicant was arrested on 28-2- 2000.
5. ' It is contended by Miss Faiz-un-Nisa Channa learned counsel for the applicant that the alleged cross fire continued for about 45 minutes but none from either side sustained any injury. It is argued that the alleged offence does not fall under the prohibitory clause contained in section 497(1), Cr.P.C. It is pleaded that the present applicant was not caught at the spot and his name was disclosed by the co-accused. His subsequent identification test has not been held through P.Ws. It is stated that 102 empties have been recovered from the scene of offence which reveal that the firing lasted long in-between the parties but as stated above nobody was injured. It is the day time incident but yet the present applicant is said to have escaped from the scene of offence.
6. ' Mr. Ali Azhar Tunio learned Assistant Advocate-General for the State has stated no objection to the grant of bail on the ground that the cross fire continued for about 45 minutes but none of the party sustained any injury; although it was day time incident.
7. ' The alleged exchange of fire took about 45 minutes but all the participants went unhurt. The culprits were said to be known to PC Ghulam Mustafa. The fact whether the participants were unsuccessful to hit anybody or the case has been padded by setting up false firing, and the applicability of section 324, P.P.0 . Is yet to be determined at trial after evidence is adduced.
8. ' The reference may be made to Rab Nawaz v. The State (1990 SCM R p. 1085) wherein their Lordships have held:-- "In this background that in view of the 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."
9. The present applicant was not caught at the spot but his name was taken by the co-accused and subsequent identification test has not been held through 'witnesses. The alleged offence is not covered by prohibitory clause contained in section 497(1), Cr.P.C. This is a case of ineffective firing in which nobody sustained any injury.
10. ' Under such situation we do not find at this stage that there appear reasonable . Grounds to believe that the accused is connected with the commission of offence with which he is charged.
11. The accused is granted bail in the sum of Rs,200,000 (two lacs) and P.R. Bond in the like amount to the satisfaction of trial Court.
12. ' Our observations are tentative in nature and the trial Court should not be influenced by the same while dictating the judgment.