ORDER
SHEET
IN
THE HIGH COURT OF SINDH, KARACHI
Cr. Bail Application No.371 of 2014
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DATE ORDER WITH SIGNATURE(S) OF
JUDGE(S)
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For hearing
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20.03.2014
Mr. Abdul Hakeem Jakhro,
Advocate for Applicant
Mr. Saleem Akhtar Burriro, Addl: Prosecutor General Sindh
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NAIMATULLAH PHULPOTO, J.- This bail application has been moved on behalf of the
Applicant/accused Ali Hassan son of Juman Soomro, arising out of Crime No.766/2013, registered at
P.S. Gulistan-e-Johar,
Karachi on 18.11.2013, under section 23(i)A of the Sindh Arms Act, 2013.
2. Brief facts
of the prosecution case as disclosed in FIR are that present applicant/accused
was arrested in Crime No.765 of 2013, under sections 353, 324, 34 PPC,
registered at police station Gulistan-e-Johar on 19.01.2014, ASI Abdul Hakeem of P.S. Aziz Bhatti, Karachi, left P.S for patrolling duty along with
his subordinate staff. When police party reached adjacent to Dalmia, Street No.15, near Golden Kitchen, Gulshan-e-Iqbal, Karachi, police
saw two persons standing in suspicious manner. Police caught them of hold and
inquired their names, to which they disclosed their names as Zaman son of Khair Muhammad and Wali son of Lal Muhammad. ASI in
presence of mashirs conducted personal search of both the accused and recovered
30 bore pistol along with three rounds in its magazine from present accused.
From another accused namely Wali son of Lal Muhammad 30 bore pistol was also recovered. Both the
accused had no licenses for the arms carried by them. They were arrested, joint
mashirnama was prepared in presence of mashirs, thereafter they were brought at
police station where separate F.I.Rs. on behalf of the
State were registered against them under the above referred section.
3. After usual
investigation challan was submitted against the accused under section 23(i)(A) of the Sindh Arms Act, 2013.
4. Bail
application was moved on behalf of the applicant/accused before learned 1st
Additional Sessions Judge, Karachi East, but the same was rejected by vide
order dated 03.02.2014.
5. Mr. Ajab Khan Khattak, learned
advocate for the applicant/accused mainly contended that two accused persons
were arrested and arms were recovered from them without licenses. Joint
mashirnama was prepared. One accused namely Wali son
of Lal Muhammad has been granted bail. He has
submitted that maximum punishment provided under the Statute may not be awarded
in this case looking to the circumstances of the case. He has further contended
that all the P.Ws are police officials and there is no
question of tampering with the evidence. Applicant/accused is no more required
for investigation. It is contended that from the date of arrest,
applicant/accused is behind the bar. Lastly, it is argued that pistol was not sealed
at spot and ASI Abdu Hakeem has foisted the same upon accused due to enmity. 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.276/2014 (Wali
Muhammad versus the State) granted by this Court dated 12.03.2014.
6. Mr. Saleem Akhtar Burriro,
learned Additional Prosecutor General Sindh, appearing on behalf of the State,
argued that 30 bore unlicensed pistol along with three live rounds has been
recovered from the present applicant/accused and all the P.Ws have implicated
the accused in the commission of offence; case is a fresh one and alleged
offence falls within the prohibitory clause of Section 497 Cr.P.C. He has
opposed the bail application.
7. 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. 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 07.01.2014, 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 was not sealed at the spot. It has been argued
that police has foisted the same upon the accused with ulterior motives. Accused
Wali Muhammad has already been granted bail. 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 Zaman son of
Khair Muhammad is admitted to bail, subject to his
furnishing solvent surety in the sum of Rs.50,000/-
(Rupees Fifty Thousand), 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
Gulsher/PA