ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Cr. Bail Application No. 282 of 2014

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DATE ORDER WITH SIGNATURE(S) OF JUDGE(S)

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For hearing

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13.03.2014

Ms. Reehana Noor, Advocate for Applicant

Mr. Shahzado Saleem, A.P.G.

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NAIMATULLAH PHULPOTO, J.-This bail application has been moved on behalf of the Applicant/accused Muhammad Azeem son of Juma Khan, arising out of Crime No. 22/2014, registered at P.S. Khokhrapar, Karachi on 12.02.2014, under section 23(i)A of the Sindh Arms Act, 2013.

Brief facts of the prosecution case as disclosed in FIR are that on 12.02.2014 ASI Mukhtar-ul-Hassan along with his subordinate staff left P.S for patrolling and for arrest of absconding accused. When the police party reached near Degree Science College Road, Khokhrapar, ASI received spy information that present accused was standing there in suspicious manner. Police party surrounded and caught him hold. On enquiry, he disclosed his name as Mohammad Azeem son of Juma Khan. His personal search was conducted in presence of mashirs. A 30 bore loaded pistol was recovered from his possession and cash of Rs.90/-. The accused had no licence for the weapon carried by him. He was arrested u/s 23(i)A of Sindh Arms Act, 2013.

After usual investigation challan was submitted against the accused in the above referred section.

Bail application was moved on behalf of the applicant/accused before learned 1^st Additional Sessions Judge, Karachi East, but the same was rejected by him vide order dated 26.02.2014.

Ms. Rehana Noor, learned advocate for the applicant/accused 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 and case has been challaned. It is contended that all the P.Ws are police officials and there is no question of tampering with the evidence. It is also argued that pistol has been foisted upon the accused by the police with ulterior motives. In support of the contentions, reliance has been placed upon the case of Jamaluddin alias Zubair Khan versus the State (2012 SCMR 573) and unreported Criminal Bail Application No. 817/2013 decided on 06.08.2013.

Mr. Shahzado Saleem, APG appearing on behalf of the State argued that from the possession of the applicant/accused unlicenced 30 bore pistol has been recovered and offence falls within the prohibitory clause of Section 497 Cr.P.C. He has opposed the bail application.

I am 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. Admittedly 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 provided 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. Rightly reliance has been placed upon the case of Jamaluddin alias Zubair Khan (supra). The fact that the Applicant has been in jail since 12.02.2014, 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 is alleged to have been recovered from possession of accused. It has been argued that police has foisted the same upon the accused with ulterior motives. 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.

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

Gulsher/PA