ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Cr. Bail Application No. 206 /2017
DATE SIGNATURE OF JUDGE
For Hearing of bail application.
01.03.2017
Mr. Muhammad Naseeruddin, advocate for the applicant.
Mr. Zahoor Shah, A.P.G. for State.
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Through instant bail application, applicant Abdul Rasheed alias Suleman seeks post arrest bail in case bearing FIR No. 485/2016 registered at PS Gizri for offence punishable under section 23 (1) (a) of Sindh Arms Act, 2013. The applicant approached to the Court of learned Additional Sessions Judge-IX, Karachi South with same plea, which was declined vide order dated 18.01.2017.
2. In nutshell the allegation against the applicant is that he was arrested by the police of P.S. Gizri and from his possession police secured one Kalashnikov bearing No. XH-3222 alongwith 25 live rounds, for which he failed to produced permit /license,therefore, present FIR was registered against him under the above referred section.
3. Mr. Muhammad Naseeruddin, learned counsel for the applicant submits that the entry number is not disclosed in the FIR through which police left the police station and proceeded to the place of incident;that the source through which police came to know about presence of applicant is not disclosed in the FIR; that it is not disclosed in the FIR that memo was prepared at the place of occurrence; that the place of arrest of the applicant is also not disclosed in the FIR; that the applicant is behind the bar since his arrest; that applicant is no more required for further investigation; that the case of applicant calls for further inquiry.
4. Conversely, Mr. Zahoor Shah, learned A.P.G. for State halfheartedly opposed the plea of bail.
5. I have given due consideration to the arguments advanced by the learned counsel for the applicant and learned A.P.G for State, I have perused the record minutely.
6. From the perusal of record, it transpires that the date time and roznamcha entry through which police of P.S. Gizri left P.S. and proceeded to the place of incident, have not been mentioned. Perusal of record also transpires that the names of police party are not disclosed in the FIR. Perusal of record further transpires that the names of the witnesses/mashirs are not disclosed in the FIR in whose presence applicant was apprehended by the police and secured alleged Kalashnikov alongwith 25 live rounds. Perusal of record also contemplates that FIR is silent whether the recovered alleged Kalashnikov was sealed on the spot or not. Perusal of recordfurther contemplates that the place of alleged incident is not disclosed in the body of FIR.
7. I am inclined to grant bail to the applicant/accused for the reasons that investigation is complete; accused is no more required for investigation; all the mashirs are police officials; there is no question of tempering with the evidence; accused is in custody since 27.06.2015. The company of the alleged Kalashnikov was no disclosed in the FIR. It is also contended that Kalashnikov alongwith 25 live rounds has been foisted upon accused by police due to enmity. Liberty of a person cannot be curtailed without legal justification. No efforts were made to call independent persons of locality. No other case of like nature is pending against accused. There is no progress in the trial. Needless to say that the 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 v. The State (2012 SCMR 573), 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."
8. Keeping in view of the above position, discussion, case law cited above, applicant is admitted to post-arrest bail, on furnishing surety in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) and P.R bond in the like amount to the satisfaction of the learned trial Court.
9. It is needless to mention here that observation made above are tentative in nature and the trial Court shall not be influenced by the same at the time of deciding the case of applicant on merits.
These are the reason short order dated 01.03.2017.
JUDGE