IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
Crl. Bail Appln. No. S- 458 of 2023.
Applicant: Ghulam Nabi Bhutto, through Mr. Abdul Rehman A. Bhutto, Advocate.
Respondent: The State, through Mr. Aitbar Ali Bullo, Deputy Prosecutor General.
Date of hearing: 31.08.2023.
Date of Order: 31.08.2023.
Shamsuddin Abbasi, J- Through captioned bail application, applicant Ghulam Nabi son of Muhammad Hashim Bhutto has sought for post arrest bail in the case emanating from F.I.R No.155/2023, registered at P.S Kashmore, for offence punishable under Section 23 (i) (a) of the Sindh Arms Act, 2013; after his plea for post arrest bail was declined by learned Additional Sessions Judge, Kashmore, by dismissing his application vide Order dated 04.08.2023.
2. Briefly stated facts of the prosecution case as narrated in the F.I.R, are that on 17.07.2023, the applicant/ accused was arrested by a police party headed by ASI Muhammad Khan Chachar, who were on routine patrolling and from his possession one unlicensed pistol of 30-bore alongwith five live bullets was recovered.
3. I have heard learned counsel for the applicant and learned DPG appearing for the State and perused the material available on record.
4. The learned counsel for the applicant has mainly contended that the applicant/ accused is innocent and has falsely been implicated in this case by the police. He has further contended that the alleged pistol has falsely been foisted upon the applicant/ accused by the police with malafide intention just to show their efficiency and to cover up their illegal act, as the applicant was arrested prior to registration of instant F.I.R i.e. on 12.7.2023 at 09.00 a.m. from his land situated in Mirpur Mathelo of District Ghotki by SHO P.S Belo Mirpur and thereafter his custody was handed over to Kashmore police, who have booked him in this false case. Learned counsel further added that an application under Section 491 Cr.P.C was filed in the Court of learned 1st Additional Sessions Judge Mirpur Mathelo, and the departmental inquiry was conducted against police officials, therefore, the applicant has been booked in this case. He has placed on record certified copy of such application. Learned counsel further contended that after usual investigation police have submitted the challan, wherein all the witnesses are police officials, hence there is no likelihood of tampering with prosecution evidence. Learned counsel lastly submitted that, the challan against the applicant has already been submitted; he is no more required for investigation and his further detention in jail would not serve any purpose, therefore, he has prayed for grant of bail to the applicant.
5. The learned D.P.G while opposing grant of bail to accused has argued that the Arms Act, 2013, has been enacted to curb the proliferation of arms and ammunition in the society and since the crime rate is being increased day by day as such the applicant is not entitled for the concession of bail.
6. It appears from the material available on record that an unlicensed pistol has allegedly been recovered from the possession of applicant. The pistol falls within the definition of “arms” as contemplated under Section 2 (c) of the Sindh Arms Act, 2013, for that maximum punishment is upto ten years as provided under Section 25 of the said Act. The case of the applicant is pending for adjudicating into the guilt of the applicant before the trial Court. The discretion is, however, left open with the trial Court by the legislature either to award maximum or the lesser punishment to the accused 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 the statute but the one which is likely to be awarded in the facts and circumstances of the case.
7. Furthermore, in the present case the police did not show any private mashir from the locality and all the witnesses are police officials. No doubt, the evidence of the police officials is as good as other witnesses and application of Section 103 Cr.P.C is ousted by means of Section 34 of the Act, but when the whole case rests upon sole evidence of police officials, their evidence requires deep scrutiny at trial. Moreover, as per contents of application filed under Section 491 Cr.P.C by one Muhammad Hashim, the applicant was arrested by police on 12.07.2023 at 09.00 a.m., as such contention of learned counsel has some force, that the police managed to register instant case just to legalize their illegal act. The investigation of the case has been completed, and all the prosecution witnesses in this case are police officials, therefore, there is no apprehension of tampering with the evidence on the part of applicant and custody of applicant is no more required to police.
8. So far contention of learned D.P.G. that the offence comes within the ambit of prohibitory clause of Section 497 Cr.P.C; in this regard it is suffice to say that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their involvement. The ultimate conviction and imprisonment of a guilty person can repair the wrong caused by a mistaken relief of bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified confinement in case of his acquittal in the long run.
9. Therefore, keeping in view the facts and circumstances of the case, prima facie, case against the present applicant requires further inquiry as contemplated under subsection (2) of Section 497 Cr.P.C. Accordingly, the applicant is admitted to bail subject to his furnishing solvent surety in the sum of Rs.100,000/- (One hundred thousand rupees) and P.R bond in the like amount to the satisfaction of trial Court.
10. Needless, to mention here that the observations made hereinabove are tentative in nature and would not influence the trial Court while deciding the case of applicant on merits.