ORDER SHEET
IN THE HIGH COURT OF SINDH
AT KARACHI
Cr.
Bail Application No.1154 of 2014
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DATE ORDER WITH SIGNATURE(S) OF
JUDGE(S)
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For
hearing
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11.08.2014
Mr. Hashmat
Khalid, Advocate for Applicant
Mr. Muhammad Iqbal Awan, A.P.G.
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NAIMATULLAH PHULPOTO, J.-This bail application has been moved on behalf of the applicant/accused
Ghulam Mustafa son of Rasool Bukhsh,
arising out of Crime No.135
of 2014, registered at P.S. Aziz Bhatti, Karachi East
on 28.03.2014, under section 23(1)(a) of the Sindh Arms Act, 2013.
Brief facts of the prosecution case as
disclosed in FIR are that present applicant/accused was arrested in Crime No.134/2014 under sections 353/324/34 PPC
and from his possession one 30 bore pistol, loaded with two bullets was
recovered, for which applicant/accused had no licence. He was arrested in
presence of mashirs, thereafter he was brought at P.S
where the aforesaid F.I.R. was registered against him.
After usual investigation challan was
submitted against the accused under the above referred section.
Bail application was moved on behalf
of the applicant/accused before learned 1st Additional Sessions
Judge, Karachi East, but the same was rejected vide order dated 25.06.2014.
Mr. Hashmat Khalid, learned advocate for the applicant/accused
mainly contended that the applicant/accused has been granted bail by the trial
Court in the main case bearing Crime No.134/2014
under sections 353/324/34 PPC. It is also
argued that pistol has been foisted upon the accused by the police due to
enmity. Lastly, it is submitted that applicant/accused is behind bars for about
4 months. In support of his contentions, learned advocate for the applicant has
placed reliance on the case of Jamaluddin alias Zubair Khan versus the State (2012 SCMR
573) and unreported order passed in Criminal Bail No.582
of 2014 (Samarqand versus The State).
Mr. Muhammad Iqbal Awan, APG
appearing on behalf of the State argued that all the P.Ws
have implicated the accused in the commission of
offence and alleged 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 bail has already been granted to the
applicant/accused by the trial Court in main case bearing Crime No.134/2014 under sections 353/324/34 PPC,
while holding that case requires further enquiry. It is observed that all the PWs are police officials, case has already been challaned, the applicant/accused
is no more required for investigation. He is behind the bars for about 4 months.
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 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). Relevant portion is reproduced as under:
“4.
……………. Needless to say that the Court while
hearing, a petition for bail is 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. The fact that petitioner has been in jail for
three months 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.
5. The argument that the petitioner has been
involved in two other cases of similar nature would not come in the way of
grant of petition so along as there is nothing on the record to show that he
has been convicted in any one of them. We, therefore, convert this petition
into appeal and allow it. The appellant shall be released on bail subject to
furnishing bail bonds in the sum of Rs.200,000
(Rupees two lacs)
with two sureties
in the like
amount to the
satisfaction of the trial Court.”
The fact that the applicant has been
in jail since 28.03.2014, 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 due to
enmity. 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 Ghulam Mustafa
son of Rasool Bukhsh is
admitted to bail subject to his furnishing solvent surety in the sum of Rs.50,000/- (Fifty Thousands Rupees), 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