1. The applicants have filed application for seeking post-arrest bail in Crime No, 8 of 2002 in an offence under sections 324, 353, 403, 147, 148, 149, P.P.C. and 13-D of Arms Ordinance registered at Police Station, Garhi Hassan on behalf of the State (Abdul Wahid Buriro) S.H.O., Police Station Mirpur Buriro.
2. Allegations against the applicants/accused are that they had fired upon the police party, who had gone to the hotel of Abdul Rehman Sarki for arrest of the accused in Crime No,42 of 2002 on the pointation of arrested accused Muhammad Bux, who was in the custody. It is further stated in the F.I.R. that all the accused nominated resorted firing upon the police party in order to get the escape of arrested accused from the hands of police while one of accused Mumtaz Sarki caused Lathi blow to H.C. Ghulam Akbar and his G-III rifle was taken away by absconding accused Budho and he too tired from the said rifle. It is further stated in the F.I.R. that the police party saw 16 persons, whom they identified one Budho 2. Muhammad Bux 3. Kakoo 4. Boro alias Karim Bux 5. Pinyo 6.
3. Ghulam Qadir 7. Shano 8. All Hassan armed with K. Ks.
9. Mumtaz with Lathi 10. Jalal 11. Abdul Rehman 12. Jan. Muhammad resident of near Garhi Hassan and four unknown accused carrying guns. The police party stopped the vehicle and came down and then chased the accused persons, but the accused started firing at them and police party while taking their position exchanged the fires. The complainant party communicated wireless message while the tiring continued for about 15 minutes. In the meanwhile S.H.O. Thul with his staff, S.H.O. Tangwani with his staff arrived there.
4. Prosecution during the investigation arrested the applicants and submitted the challan in the Court of learned Civil-Judge and FCM, Thull and thereafter same case was sent up to the Court of learned Sessions Judge, Jacobabad where the applicants/accused filed bail application, which has been rejected by an order, dated 6-9-2002, hence the present application has been filed on similar ground for seeking bail.
5. It is contended by the learned counsel that learned Civil Judge and FCM, Thull has issued show- cause notice to S.H.O. (Abdul Wahid Buriro) of Police Station, Mirpur Buriro regarding misinterpreting the facts in the F.I.R. It is further urged by the learned counsel that there are allegations against the applicants of ineffective firing which continued for 15 minuts, but no one from either side sustained fire shot injury, as such the case of applicants calls for further inquiry. It is further contended that it is specifically mentioned in the F.I.R. that police had taken co-accused Muhammad Bux Sarki with them who was already under judicial custody in Crime No, 42 of 2002 of Police Station Mirptir Buriro and on his pointation the complainant party had raided at the hotel of one Abdul Rehman Sarki where the complainant saw 16 accused persons carrying the weapons and they resorted firing at them, but it is astonishing to note that this accused Muhammad Bux who is shown to have accompanied was in judicial custody right from 26-7-2002 to 28-7-2002 and no permission was' taken from the concerned Judicial Magistrate. It is further pointed out that Muhammad Bux who was already in judicial custody and he has been cited one of the accused in this case. It is further urged b.y the learned counsel that according to F.I.R. accused Mumtaz has caused Lathi blow to H.C. Ghulam Akbar and his G-III rifle was taken away by co-accused Budho which is quite unbelievable that person would be able to take away the rifle of a personnel when there was firing between the culprits and the police party which continued for about 15 minutes.
6. Mr. Ali Azhar Tunio, learned A.A.-G. has frankly conceded the grounds urged by the learned counsel on behalf of the applicants and submits that the applicants/ accused are entitled for concession of bail, as the learned Civil Judge and FCM, Thull had issued show-cause notice to the S.H.O. Abdul Wahid Buriro for misapplying the facts in the F.I.R.
7. I have given my anxious consideration to the arguments advanced by the learned counsel and also perused the contents of the F.I.R. and medical certificate of injured H.C. Ghulam Akbar. The show cause notice issued to Abdul Wahid Buriro S.H.O.. Police Station Mirpur Buriro is reproduced hereinbelow:-- "To.
8. Abdul Wahid Buriro, S.H.O., Police Station Mirpur Buriro.
9. Subject: Show-cause Notice in Crime No, 8 of 2002 of. Police Station Garhi Hassan.
10. Whereas you have registered F.I.R. of Crime No, 8 of 2002 of Police Station Garhi Hassan on 26-7- 2002 and you have mentioned in the F.I.R. that accused Muhammad Bux son of Shah Beg by caste Sarki had pointed for the remaining accused and you on his pointation committed the raid on the hotel of Abdul Rehman Sarki alongwith accused Muhammad Bux, who is involved in Crime No, 42 of 2002 under section 17/3, E.H.O., Police Station Mirpur Buriro. The accused Muhammad Bux is already confined in judicial lock-up Thul under judicial remand from 26-7-2002 to 28-7-2002 but you have mentioned in the F.I.R. No, 9 of 2002 but you alongwith accused raided for arrest of remaining accused involved in Crime No, 42 of 2002 of Police Station Mirpur Buriro and you have misapplied the facts into the F.I.R.
11. Thereafter, you are hereby directed to submit reply of this notice up to 1-8-2002, as the accused Muhammad Bux son of Shah Beg Sarki is already under judicial remand how you took the accused Muhammad Bux and on his pointation raided the hotel at Garhi Hassan. In case of failure, the legal action will be initiated against you in accordance with law.
12. Given under my hand and seal of the Court this 29th day of July, 2002.
13. (Sd.)
14. (Haji Ghulam Yaseen Kolachi), Civil Judge and FCM, Thull.
15. Copy to District Police Officer, Jacobabad for information and necessary action.
16. (Sd.)
17. Civil Judge & FCM, Thull."
18. According to the contents of the F.I.R. it is clear that Muhammad Bux was already in judicial custody in Crime No, 42 of 2002, but this accused has shown as one of the accused in this case and on his pointation the complainant party had appeared at the hotel of one Abdul Rehman Sarki where complainant party noticed that 16 persons carrying the weapons and they resorted firing. The injury allegedly sustained by H.C. Ghulam Akbar though attributed to applicant Mumtaz has been declared as Shujjah-e-Khafifah, which is bailable in nature and does not fall under the prohibitory clause of section 497, Cr.P.C.. As per statements under section 161. Cr.P.C. of the witnesses they had exhausted more than 800 rounds at the time of exchange of firing, but no one has sustained any injury nor any of the accused or no one was arrested at the spot on the day of incident whereas on 8-8-2002 six accused were arrested and accused Budho Sarki thrown G-111 rifle and ran away.
19. Learned A.A.-G. has rendered his no objection for the grant of bail. 1 am in agreement with the view taken by the learned A.A.-G. and applicants/accused are entitled to concession of bail.
20. Resultantly, bail is granted to the applicants/accused in the sum of Rs, one hundred thousand each and P.R. Bond in the like amount to the satisfaction of the trial Court.