ORDER SHEET
IN THE HIGH COURT OF SINDH
AT KARACHI
Criminal
Bail Application No.174 of 2014
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DATE ORDER WITH SIGNATURE(S) OF
JUDGE(S)
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For
hearing
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26.02.2014
Mr. Muhammad Tariq, Advocate for
Applicant.
Mr. Khadim
Hussain Khuharo, D.P.G.
along with IO/IP Muhammad Hussain Chandio
of P.S. Sachal
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Through the instant bail application,
applicant Ishaq son of Muhammad Sadiq,
seeks post arrest bail in Crime No.259/2012 registered at P.S. Sachal under Section 23(i)(a) of
the Sindh Arms Act, 2013.
2. Brief facts of the prosecution as
disclosed in FIR are that on 20.05.2013 ASI Fazal
Ahmad along with his subordinate staff was performing patrolling duty in the
area. At 1045 hours police party reached at Aziz Bhatti Park near Johar Complex.
It is alleged that 50/60 persons armed with lathies,
sticks and stones headed by one Aijaz Samtio belonging to the National Movement Party were
protesting and pelting stones on the vehicles on the road and mob had got the
shops closed and road was blocked. ASI Fazal Ahmed gave
such information to the concerned SHO and said SHO along with subordinate staff
reached at place of incident and encircled the persons who were protesting on
the road. It is alleged that accused persons fired upon the police party with
intention to kill and in such firing SHO received firearm injury on his back
side. Police also fired in the self defence.
Thereafter, some accused were apprehended. On the query they disclosed their
names as Gulshan son of Muhammad, Ishaque
son of Muhammad Sadiq, Doda
Khan son of Liaquat and
Tariq son of Maroof Abdul Ghaffar.
It is alleged that Aijaz Samtio,
who was heading the mob, succeeded in running away from the scene of occurrence
in his car bearing No.AYB-822. Personal search of accused Gulshan
was conducted by SHO in presence of mashirs, one 30
bore pistol without number and three live bullets were recovered from his
possession and he has no license carried by him. Personal search of accused Ashiq son of Sadiq was also
conducted, 30 bore pistol, without license was recovered from him as well as
two live bullets. Apprehended accused during interrogation disclosed the names
of the co-accused who succeeded in running away, they were Imam Bux son of Ghulam Hussain, Hajan son of Haji Ali
Muhammad Chandio, Qadir Gabol, Ghulam
Rasool Sodar, Aijaz Samtio son of Muhammad Mithal, Sher Jan Khoso, Ramzan Khoso,
Javed Bhatti and Raees Memon. Police searched Car
bearing NO.AYB-822. One shopping bag containing 87 live bullets of SMG were
recovered from it. From the search of Alto VXR 11 live bullets of 9mm pistol,
12 live bullets of 30 bore and 15 live bullets of 12 bore pistol were
recovered. Accused were arrested, mashirnama of the
recovery was prepared in presence of mashirs.
Thereafter, accused and case property were brought to the police station,
where, ASI Fazal Ahmed lodged FIR against the accused
on behalf of the State. It was recorded vide crime No.257/2013 under section
324, 354, 147, 148, 149 PPC and 7 Anti-Terrorism Act, 1997. Separate FIR
No.259/2013, under Section 23(i)(a) Sindh Arms Act
2013 was lodged by ASI Fazal Ahmad on behalf of the
State against accused Ishaq and others.
3. After usual investigation challan was submitted against the accused in the main Crime
as well as in the instant case.
4. Bail application was moved on behalf of
the applicant/accused Ishaq son of Muhammad Sadiq, the same was rejected by learned Judge,
Anti-Terrorism-I Karachi vide order dated 01.11.2013.
5. Mr. Muhammad Tariq, learned advocate for
the applicant, mainly contended that there is allegation of recovery of 30 bore
pistol from the possession of the accused without license but said weapon has not
been sent to the Ballistic Expert for report. Case has been challaned.
All the prosecution witnesses are police officials and there is no question of
tampering with the evidence. Lastly, it is contended that punishment of the alleged
offence may extend to 10 years. According to defence
counsel, alleged offence does not fall within prohibitory clause of Section 497
Cr.P.C. In support of the contentions, he relied upon
cases, reported as Jamaluddin alias Zubair
Khan versus the State (2012 SCMR 573).
6. Mr. Khaid Hussain, DPG appearing on behalf of the State argued that
the Sindh Arms Act 2013 has been enacted to curb the proliferation of the arms
and ammunitions and offence alleged falls within the prohibitory clause of
Section 497 Cr.P.C. He opposed the bail application.
7. We are inclined to grant bail to the
applicant/accused for the reasons that all the prosecution witnesses are police
officials; case has been challaned; applicant is no
more required for investigation; there is no apprehension of tampering with the
prosecution evidence; pistol recovered from the possession of the
applicant/accused has not been sent to the Ballistic Expert for the report. In
Section 24 of The Sindh Arms Act, 2013, it is mentioned that punishment of
un-licensed arm may extend to ten years and with fine. Needless to say that the
Court while hearing, a bail application 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. Reliance can be placed on the case of Jamaluddin alias Zubair Khan
versus the State (2012 SCMR 573). The fact that the Applicant has been in jail
since 20.05.2013, 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. In the instant case,
30-bore unlicensed pistol has been recovered from possession of accused. It has
been argued that police had ill-will with accused to foist pistol upon him.
Therefore, keeping in view facts and circumstances of the case, prima facie,
case against applicant/accused requires further inquiry as contemplated under
subsection (2) of Section 497 Cr.P.C.
Applicant/accused is admitted to bail subject to his furnishing solvent surety
in the sum of Rs.100,000/- (One Hundred Thousands),
and P.R bond in the like amount to the satisfaction of trial Court.
8. Needless, to mention here that the
observations made hereinabove are tentative in nature and would not influence
trial Court while deciding the case of the applicant/accused.
JUDGE
JUDGE
Gulsher/PA