ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
Cr.Bail Appln. No.S- 652 of 2009
DATE ORDER WITH SIGNATURE OF JUDGE
For hearing.
Date of hearing: 29.3.2010.
Date of order:
Mr. Ghulam Asghar Mirbahar, Advocate for applicant.
Mr. Shahid Shaikh, A.P.G.
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O R D E R
AQEEL AHMED ABBASI, J- Being aggrieved and dis-satisfied by the order dated 3.10.2009 passed by learned IInd Sessions Judge, Hyderabad in Sessions Case No.804 of 2009, Criminal Bail Application No.1807 of 2009 in Crime No.193 of 2009 registered at Police Station Cantonment Hyderabad U/s 13(d) Arms Ordinance, 1979, whereby the bail application has been dismissed.
The applicant has filed the instant bail application U/s 497 Cr.P.C. It appears that FIR was registered against the applicant/accused by SIP/SHO Malak Qamar Zaman Shah of P.S Cantonment Hyderabad on 11.9.2009 at about 1820 hours, the contents of which, in brief, are that on the orders of high officials, the complainant alongwith his subordinate staff left PS for checking and when they were checking at Barriage Colony, they saw one person alighting from the bus having a bag in his hand, who on seeing the police party tried to run away but was apprehended. On inquiry, he disclosed his name to be the applicant and two rifles, one magazine with bullets, two 9 MM pistols alongwith magazine and bullets were recovered from the said bag. From personal search of the accused, one pistol of 30 bore with magazine containing five bullets recovered from the fold of his shalwar and cash of Rs.100/- from front pocket of his shirt. The accused could not produce any license or permit of the above weapons. Thereafter, accused and the case property were brought at PS where such FIR was registered.
The accused was arrested on 11.9.2009 and recovery was also affected on the same date. Challan was submitted on 10.10.2009 in the Court of Civil Judge & Judicial Magistate-XII Hyderabad.
It is inter alia contended by learned counsel for the applicant that applicant has falsely been implicated in the instant crime by police on refusal of demand of illegal gratification. He contents that offence does not fall within the prohibitory clause. Per learned counsel, the accused is engaged in the business of repair and sell of the licensed arms alongwith his father who is duly authorized to conduct such business as per license No.53 issued by the District Magistrate Hyderabad in terms of Rule 28 (1) (b). It is further contended that there is no independent witness of the alleged offence. All the prosecution witnesses are police personnel. Learned counsel further argued that the case property was not sealed nor the same was sent to obtain the Ballistic Expert’s report. Learned counsel has drawn attention of this Court to the mashirnama to show that no independent witness has been shown in the mashirnama. Moreover, no proper description and number of weapons allegedly recovered by the police has been mentioned therein. It is further contended that the trial is not proceeding and only charge has been framed whereas no witness has been examined inspite of the fact that all the prosecution witnesses are police officials. The learned counsel states that accused is behind the bar since the date of his arrest i.e. 11.9.2009 and the punishment provided for offence is only three years. In support of his contentions, the learned counsel has placed reliance on the following cases:-
1. Sardar Khan Vs. The State (1999 MLD 1918).
2. Ahmed Jan alias Shinoo (1999 P.Cr.L.J 506).
3. Munsib Khan Vs. The State (1999 P.Cr.L.J 1264).
4. Abdul Razak Vs. The State (PLD 1996 Lahore 194).
5. Khalid Masood Khan Vs. The State (2003 YLR 288 Peshawar.
Conversely, Mr. Shahid Shaikh, the learned A.P.G does not seriously oppose the grant of bail to the accused under peculiar facts and circumstances of the case.
I have heard both the learned counsel, perused the record as well as the case law relied upon by learned counsel for the applicant.
On tentative assessment of the record and evidence available with the prosecution, it appears that certain violation of legal requirements has been made by the prosecution including non-observation of provisions of Section 103 Cr.P.C, not sealing of the case property and not sending the same to Ballistic Expert for obtaining the report which creates doubts on the prosecution story and the same requires further inquiry. Moreover, the accused is behind the bar since 11th September 2009 and no prosecution witness has so far been examined nor any explanation has been offered justifying the delay in prosecution of the case before the trial Court. It is settled principle of criminal law that in doubtful cases which require further inquiry to connect the accused with the alleged crime, and further in case of inordinate delay in prosecuting the accused by the prosecution, entitles the accused to the concession of bail.
In view of hereinabove facts and the case law relied upon by learned counsel for the applicant, the applicant by short order dated 29.3.2010 was admitted to bail subject to furnishing surety in the sum of Rs.100,000/- (One lac) with P.R Bond in the like amount to the satisfaction of the trial Court with observation that if the applicant/accused misuses the concession of bail, the trial Court shall be at liberty to initiate the proceedings for canceling the bail of the applicant according to law. These are the reasons for such short order. Before parting with this order, it is clarified that the observations made hereinabove are tentative in nature and the trial Court shall not be influenced by any such observation and shall decide the case on merits on the basis of evidence available on record. The trial Court is further directed to conclude the trial within two months from the date of receipt of this order.
JUDGE
Tufail