IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Criminal Bail Application No.S-535 of2021

                                   

 

            Applicant                  :           Dilawar s/o Ghulam Hussain @ Abdul Razzaque Kosh, through Mr. Shabbir Ali Bozdar, advocate

           

            Respondent              :           The State, through Mr. Shafi Muhammad Mahar, Deputy Prosecutor General, Sindh

                                                               

            Date of hearing        :           13.09.2021 

            Date of order            :           13.09.2021

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                                                          ORDER

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ZAFAR AHMED RAJPUT, J.-       Applicant/accused named above being abortive to get the concession of post-arrest bail from the Court of III-Additional Sessions Judge, Mirpur Mathelo in Cr. Bail Application No. 1170 of 2021, vide order dated 24.08.2021, through the instant application seeks the same concession from this Court in Crime/FIR No. 16 of 2021, registered at Police Station Yaro Lund under section 23 (1) (a), Sindh Arms Act, 2013 (the “Act”).

           

2.         As per F.I.R., the applicant was arrested on 10.08.2021, at 1200 hours, by a police party headed by HC Sharfuddin Malik,while acting upon a tip-off, on being found in possession of one unlicensed 30 bore pistol with magazine and three live bullets at Malkan Wari Bridge in presence of mashirs, namely, PC Rashid Ali and PC Muhammad Ali.

 

3.         Learned counsel for the applicant has mainly contended that applicant is innocent and has committed no offence and the alleged pistol has been foisted upon him; that the applicant has been involved in a false case by the police on the instigation of local feudal lords, as there is enmity going on between the Shar and Kosh communities; that the pistol does not come within the definition of firearms or ammunition but within arms and hence the police has misapplied section 23 (1) (a) at the place of section 24 of the Act, which offence does not fall within the prohibitory clause of section 497, Cr.P.C. being punishable with imprisonment for a term which may extend to ten years; that despite prior information, police failed to associate any private mashir and thus the alleged recovery is in violation of section 103, Cr. P.C.

 

4.         Conversely, Learned D.P.G,has maintained that the Sindh Arms Act, 2013 has been enacted to curb the proliferation of arms and ammunition in the society and since offence falls within the prohibitory clause of section 497, Cr.P.C. he opposed the application.

 

5.         I have heard the learned counsel for the applicant, learned D.P.G.and perused the material available on record with their assistance.

 

6.         In order to appreciate the contentions of learned counsel for the applicant, I deem it appropriate to reproduce the relevant provisions of section 23 (1)(a) and section 24 of the Act,as under:

                        23.       Punishment for certain offences.-(1) Whoever -

(a)        acquires, possesses, carries or control any firearmorammunition in infringement of section 3, shall bepunishablewithimprisonment for a termwhich mayextend to fourteen years and with fine;

 

24.       Punishment for possessing arms with intent to use for unlawful purposes. - Whoever possesses arms or ammunition licensed or unlicensedwith the aim to use them for any unlawful purpose or to facilitateany other person to use them for any unlawful purpose shall,whether such unlawful purpose has been materialized or not, thelicense holder, the user and the person who has no license, bepunishable with imprisonment for a term which may extend to tenyears and with fine.

                                                                                                            (Emphasis supplied)

 

Terms “firearm”,“ammunition” and “arms” have been defined under section 2 (b), (c) and (d) of the Act, as under:

2.         Definitions.-in this Act, unless there is anything repugnant in the subject or context:-

 

(a)        -----------------------------------------------------------------  

(b)       “ammunition” means ammunition for any firearm, andincludes –

 

(i)           rockets, bombs, gun powder, shells, detonators,cartridges, grenades;

 

(ii)        articles designed for torpedo service and submarinemining;

 

(iii)   other articles containing, or designed or adapted tocontain, explosive, fulminating or fissionable materialor noxious liquid, gas etc. whether capable of usewith firearms or not;

 

(iv)   chargesforfirearms and accessories for suchcharges;

 

(v)    fuses and friction tubes; and

 

(vi)   parts and machinery for manufacturing ammunition;

 

(c)        “arms” means articles, designed as weapons of offence ordefence and includes rifles, pistols, revolvers , grenades,swords, bayonets, and other lethal weapon. It shall alsoinclude machinery (and its parts) for manufacturing arms,but excludes articles designed solely for domestic oragricultural purposes and weapons incapable of beingused otherwise that as toys or of being converted into

serviceable weapon;

 

(d)       “firearms” means weapons designed to discharge aprojectile or projectiles of any kind by the action of gunpowder or any explosive or other forms of energy andincludes –

 

(i)     artillery hand-grenades, riot-pistols or weapons ofany kind designed for the discharge of any noxiousliquid, gas etc.;

 

(ii)    accessories for any such firearm, intended to diminishthe noise or flash caused by the firing thereof;

 

(iii)   parts of, and machinery for manufacturing fire-arms;and

 

(iv)   carriages, platforms and appliances for mounting,transporting and serving artillery;

 

7.         The applicant has been booked in the instance case for an offence under section 23(1)(a) of the Act for allegedly possessing one unlicensed “pistol”. It appears from the bare reading of the aforementioned provisions of the Act that the “pistol” does not come within the definition of firearm and ammunition described in Section 23 (1)(a) of the Act, as defined under section 2 (b) and (d) (ibid) but within the purview of arms as expressed under section 24 of the Act and defined under section 2 (c) (ibid). As such, looking to the facts of the FIR, it is not the section 23 but 24 of the Act which is apparently applicable to the case of the applicant, which provides punishment with imprisonment for a term which may extend to tenyears and with fine.

 

8.         The applicant is confined in judicial custody since the day of his arrest and police has submitted the challan against him; hencehe is not required for further investigation. Despite prior information, daylight and roadside, police failed to join any private person to witness the search and recovery process.Record is also silent as to whether applicant is a habitual or previous convict. All the witnesses are police officials;therefore, there is no apprehension of tampering with the prosecution evidence. The case of the applicant is pending for adjudicating into his guilt before the trial Court. The discretion is however left open with the trial Court by the legislature either to award maximum punishment of ten years imprisonment to the applicant or to award lesser punishment keeping in view the surrounding circumstances commensurate with the nature of the case. The Court while hearing bail application does not have to keep in view the maximum sentence provided by statute but the one which is likely to be entailed in the facts and circumstances of the case.Therefore, keeping in view the facts and circumstances of the case, prima facie, case against the applicant requires further enquiry as contemplated under subsection (2) of Section 497 Cr.P.C. Accordingly, the applicant is entitled to be released on bail.

 

9.         In view of above, the applicant is admitted to bail subject to his furnishing solvent surety in the sum of Rs.50,000/- (fifty thousand) and P.R. Bond in the like amount to the satisfaction of the trial Court.

 

10.       The observations made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of the applicant on merits.

           

           

                                                                                                                        JUDGE