1. MUHAMMAD ROSHAN ESSANI, J.--- The facts leading to present application for bail are that applicant/accused Punhoon Kalhoro is facing trial in Special Case No,43 of 1999, before learned Special Court (S.T.A.) Hyderabad, under sections 324, 504, 352, 147 and 149, P.P.C. It arose out of F.I.R.
2. No,11 of 1999 of Police Station Batho Forest, District Hyderabad.
3. The brief facts of the prosecution case as disclosed by complainant S.H.O./S.I.P. Muhammad Yousif Baloch of Police Station Bhitai Nagar in F.I.R. Dated 2-7-1999, are re-produced hereinbelow: "On behalf of State, complaint is that I am posted as S.H.O. Police Station Bhitai Nagar. On 1-7-1999 we received spy information that on 24-6-1999, there was an encounter with decoits and S.H.O.
4. Halla, Muhammad Ayub Brohi in Noor Keti Forest, in which H.C. Ghulam Rasool Shah and H.C.
5. Muhammad Hussain were died and notorious dacoit Bachu Lail was killed in the encounter, some dacoits of the gang have come near the Bhan of Punhoon Kalhoro situated of Bhatto Forest and one injured' dacoit is also with them for the purpose of treatment. They are providing him treatment secretly. On receiving such information, he informed the S.S.P., Hyderabad Capt. Zaffar Iqbal, who directed him for aid. On receiving such order, I, S.H.O./S.I.P. Muhammad Younis Baloch with staff A.S.-I. Khalil Shah, A.S.-I. Aftab Ahmed Memon, H.C. Nazar Ali, P.C. Muhammad Yousif, P.C.
6. Qurban Ali, P.C. Usman, driver H.C. Muhammad Ayoob left Police Station Bhitai Nagar vide Entry No,27, dated 2-7-1999, at 3-00 hours in Government vehicle No,SP-5520 and reached near Police Station Halla. We called S.H.O. Halla on wireless and S.H.O. Halla Muhammad Ayub Brohi alongwith staff A.S.-I. Munwar Hussain, A.S.-I. Mushtaque Dad and other police constables and driver H.C.
7. Abdul Ghaffar came in Government vehicle No,SP-4596 and staff of A.P.C. No,2, P.C. Ghulam Shabir, driver H.C. Muhammad Hashim reached, we all proceeded and according to programme S.H.O.
8. Syed Mujahid Ali Shah alongwith staff also met us on the way, we all proceeded towards the pointed place and separate parties were made. In party No,1, I S.H.O. Muhammad Younis Baloch, S.I.P. Muhammad Ayub Brohi, S.H.O. Halla and staff of Police Station Bhitai Nagar alongwith other went towards southern side. The party No,2 consisting of S.I.P. Syed Mujahid Ali Shah S.H.O. Bhatto, Munwar Hussain Sario A.S.-I. Mushtaque Ahmed Dal and other staff went towards northern side, we concealed the Government vehicles in the Jungle, and encircled the Bhan of Punhoon Kalhoro at 7- 30 hours. The dacoits on seeing us in the police uniform with intention to kill us opened fires at us.
9. We both the parties in our self-defence also fired. The encounter continued upto half an hour and such information was conveyed to high officials on wireless. When the firing was stopped from the side of dacoits, we both the parties advanced and saw that one dacoit was lying dead on the ground and by his side on K.K. The bandoliar was tied around with his chest. Two magazines were loaded in the K.K. One dacoit on seeing the police party surrendered his K.K. Before us and stood by raising hands up. The dacoit who surrendered before us was taken in custody alongwith loaded magazine. On enquiry arrested person disclosed his name as Mitho son of Muhammad by caste Barhamani resident of Umed Ali Barhamani Lakha, District Dadu. S.I.P. Muhammad Ayub Brohi S.H.O.
10. Halla on seeing the dead body of dacoit disclosed that he is the same dacoit who was injured in the encounter on 24-6-1999. He had one injury on the shoulder, which was bandaged. The apprehended accused disclosed about the dead dacoit to be Nehal Lail and regarding the other absconding dacoits to be (1) Shoukat Lail (2) Moula Bux alias Ali Sher Khaskheli (3) Mamoon Machhi, (4) Illyas Kamlo, (5), Asghar Khashkheli. They had disappeared taking the advantage of firing and thick jungle. In the meanwhile D.S.P. Halla Jangsher Rana alongwith his staff S.-I. Bhanot Muhammad Ismail Solangi alongwith staff S.H.O. Noor Keti Habibullah Chand alongwith staff and S.H.O. Bhanot Lal Muhammad Lashari with staff reached. The recovered arms and ammunitions from the apprehended dacoit Mitho Barhamani and dead dacoit Nehal Lail was secured under Mashirnama in presence of S.I.P./S.H.O. Muhammad Ayub Brohi; Police Station Halla and A.S.-I. Khalil Shah of Police Station Bhitai Nagar. The other staff searched for the absconding dacoits but they concealed themselves in the forest. The S.H.O. Bhato, Syed Mujahid Ali Shah after completing the codal formalities sent the dead body of dacoit Nehal Lail for post-mortem through H.C. Khadim Hussain to Taluka Hospital, and brought the apprehended accused and the arms and ammunition recovered from them at police station. The S.H.O. Bhatto went in search of the dacoits but could not succeed in apprehending them as they ran away and concealed themselves in the thick jungle.
11. Thereafter, we came at Police Station Bhatto Forest. Since dacoit Nehal Lail and others interfered in our legal duty and fired upon us with intention to kill us and in the firing of police, dacoit Nehal Lail has been killed and dacoit Mitho Barhamani has been apprehended. They have backing of Punhoon Kalhoro and his brother Ghulam Ali Kalhoro and at the instigation of Ahmed the dacoit attacked police. In the encounter, I fired 70 rounds from my SMG and the staff will give their detail separately. Since the accused Mitho Brahamani was having unlicensed K.K, as such he has committed offence under section 13-D, Arms Ordinance. Therefore, separate case will be registered against him.
12. Detail of recovered arms and ammunition:
(1) One KK, with folding butt, without number, in working condition alongwith magazine, containing 15 bullets of K.K. Lying besides the dead body of dacoit Nehal Lail.
(2) One bandolier of "Khaki" colour alongwith two loaded magazines containing 60 bullets of K.K.
13. Tied with waste.
(3) One K.K. Of folding butt recovered from dacoit Mitho Barhamani, made in China bearing No,56- 76504321, and No,4321 written on butt. One magazine containing 20 live bullets of K.K. Was also recqvered.
(4) One Thelli of Khaki cloth, wherein one loaded magazine of K.K. Containing 30 bullets and also 30 bullets more of K.K. Were lying.
14. The applicant/accused after usual investigation was sent up to stand trial.
15. The applicant/accused applied for bail before the trial Court, but it was declined by impugned order, dated 17-12-1999: We have heard Mr. Allah Bachayo Soomro, learned counsel for the applicant/accused and Mr. Agha Khuda Bux learned Assistant Advocate-General for the State. The later conceded to the grant of bail. We have also perused the material available on record.
16. The perusal of record shows that the only allegation against the applicant/accused in the F.I.R. Is that applicant/accused was backing dacoits. It is no where mentioned that he participated in the encounter between the police and the dacoit, or he was present at the time of alleged incident.
17. Nothing incriminating was secured from the possession of the applicant/accused. The members of police party also did not receive any injury in the alleged encounter. The applicant/accused is no more required for the purpose of investigation. The complicity of the applicant/accused in the commission of crime could be determined after the evidence is recorded in the case.
18. Looking towards the peculiar facts and circumstances of the case, we are of the considered view that the bail plea of applicant/accused merits consideration.
19. Consequently, the applicant/accused is granted bail in the sum of Rs,2,00,000 (two lac) and P.R.
20. Bond in the like amount to the satisfaction of the trial Court.
21. By our short order, dated 19-1-2000 bail was granted to the applicant/accused and above are the reasons for the same.
22. The observations if any made hereinabove are of tentative nature and the trial Court will not be influenced by the same at the time of final adjudication of the case.