Criminal Bail Application No.1817 of 2014
Present
Mr. Justice Aqeel Ahmed Abbasi
Mr. Justice Muhammad Junaid Ghaffar
Date of hearing : 24.12.2014
Date of order : 15.01.2015
Applicant : Sikandar Ali Lashari through
M/s. Mahmood A. Qureshi &
Jamshed Iqbal, Advocates
Versus
Complainant : Hunain Shahani through Pir
Asadullah Shah Rashdi, Advocate.
Respondent : The State through
Mr. Ali Haider Saleem, APG.
O R D E R
Aqeel Ahmed Abbasi, J. Being aggrieved and dis-satisfied with the order dated 06.09.2014 passed by the Judge of Anti-Terrorism Court, Hyderabad @ Hyderabad in ATC Case No.92/2014 in Crime No.55/2014 under Sections 24, 25 of Sindh Arms Act, 2013, registered at P.S. Jamshoro, whereby, the bail application moved by the applicant Sikandar Ali Lashari was dismissed, the applicant has approached this Court through instant bail application filed under Section 498 Cr.P.C. read with Sections 497 and 561 Cr. P.C. with the prayer to release him on bail subject to furnishing solvent surety during pendency of his trial before the trial Court.
2. Brief facts of the case as reported in the FIR are that on the complaint of one DSP Razi Khan Almani, SDPO, Chalgri, District Hyderabad lodged an FIR No.55/2014 under Sections 24 and 25 of the Sindh Arms Act, 2013 at P.S. Jamshoro on 01.04.2014, wherein, it has been alleged that the aforesaid DSP accompanied with other police officials along with two musheers namely Sajid Ali and Nawab Ali and present applicant namely Sikandar Ali Lashari, who was already under arrest in connection with crime No.12/2014 under Sections 302/114/109 PPC read with Sections 6 & 7 of Anti-Terrorism Act, 1997, registered at P.S. G.O.R., Hyderabad, boarded in official vehicle reached at the place i.e. cattle pen of Ghulam Abbas Siyal and Iqbal Punjabi situated at Syed Abad Colony, Jamshoro, pointed out by the applicant/accused Sikandar Ali Lashari, where, after having broken the locks of main gate, entered inside, where no person was found, and from the store constructed above in the bath room of a room constructed inside, a blue coloured bag was lying, which was opened in the presence of musheers, wherein, arms and ammunition and other articles were recovered. The applicant/accused Sikandar Ali Lashari, disclosed that it is the weapon of accused persons namely Ghulam Abbasi Siyal and Iqbal Punjabi, which were used in the murder of Aaqib Hussain Shahani. Out of recovered weapons, 30 bore pistol bearing No.6398 was found entered in the name of Farhan Ali Siyal vide license No.1073/HMQ dated 29.03.2011, whereas, accused persons namely, Ghulam Abbas Siyal, Iqbal Punjabi and Farhan Ali Siyal have used and concealed the licensed and un-licensed arms and ammunition in connection with Crime No.12/2014, which attracted the provisions of Sections 24 and 25 of Sindh Arms Act, 2013, hence the same were taken into police possession after getting the same sealed up separately in presence of musheers. Detail of about 16 articles recovered from the aforesaid place including the pistols, live bullets and cartages etc. has been mentioned at the bottom of the FIR. Musheernama was prepared on the spot with the signatures of musheers. Charge sheet was prepared against the present applicant after investigation and was presented before the trial Court on 08.05.2014. The applicant filed Crl. Bail Application before the trial Court on 09.08.2014, which was dismissed vide impugned order dated 06.09.2014, hence, the present bail application has been filed by the applicant before this Court for his release on bail subject to furnishing solvent surety.
3. It is contended by the learned counsel for the applicant that the applicant is innocent, who being a District and Sessions Judge, has been falsely implicated in the instant crime at the behest of the police in connection with another Crime No.12/2014, registered at P.S. G.O.R, Hyderabad, and was already under police custody in the aforesaid crime, whereas, instant FIR has been registered after about 26 days of his arrest. Per learned counsel, the alleged recovery of the arms and ammunition as referred to hereinabove has been foisted upon the applicant by the prosecution, which was neither recovered from the possession nor is admittedly owned by the present applicant, whereas, per learned counsel, even the place from where the alleged recovery of arms and ammunition has been made is not owned by the present applicant. Per learned counsel, admittedly, the alleged recovery has been made from the cattle pen which as per prosecution is owned by Ghulam Abbas Siyal and Iqbal Punjabi, whereas, police entered in the house after break open the locks, whereas, it has not been alleged in the FIR that the said arms have been recovered from some hidden place on the pointation by the present applicant. It is further contended by the learned counsel for the applicant that the ingredients of Sections 24 and 25 of the Sindh Arms Act, 2013, are not attracted in the instant case as neither the applicant is owner nor the applicant has used such arms, for commission of alleged offence, neither he was found in possession of the alleged recovered arms and ammunition. Per learned counsel, the present applicant has no control whatsoever over the said weapons as the same are owned and possessed by co-accused persons as stated in the FIR. Learned counsel further submits that even the musheers of the recovery were not from the locality, whereas, present applicant has been involved in the instant crime to justify the registration of FIR No.12/2014, wherein, the present applicant has been nominated at a subsequent stage for having committed an offence of murder through co-accused persons by way of abetment and connivance. Learned counsel further submitted that instant crime is a separate crime, hence the evidence or material of another crime i.e. 12/2014 cannot be read in the instant crime, as according to learned counsel, it is yet to be decided by the learned trial Court as to whether instant crime, which is registered under a separate statute i.e. Sindh Arms Act, 2013, will be jointly tried by the Anti-Terrorism Court along with main case i.e. Crime No.12/2014 under Anti-Terrorism Act, 1997 or not? Per learned counsel, the prosecution could not establish that either the applicant is owner or was found in possession or has used the recovered weapon for commission of offence, whereas, the alleged recovery, on the pointation of the present applicant when he was under arrest, is also seriously doubtful, therefore, the matter requires further inquiry, hence, the present applicant is entitled to be released on bail in the instant crime. In support of his contention, learned counsel for the applicant has placed reliance in the following case law:-
1. Ayaz Ali vs. The State PLD 2014 Sindh 282.
2. Arbab vs. The State PLD 2014 Sindh 476.
3. Nur Elahi vs. The State and others PLD 1966 Supreme Court 708.
4. Inayat Ali vs. The State 2014 YLR 1372.
5. Rajab vs. The State 2014 YLR 1769.
6. Raheem Bux vs. The State 2014 P. Cr. L.J. 1618.
7. Muhammad Aslam vs. The State 2010 P.Cr. L.J. 1778.
8. Ghulam Hussain and others vs. The State 1996 P.Cr. L.J. 514.
9. Iftikhar Alias Gutto and another vs. The State NLR 1994 Criminal 281.
4. Conversely, Pir Syed Asadullah Shah Rashdi, learned counsel representing the complainant in Crime No.12/2014 has vehemently opposed the contention of the learned counsel for applicant and submitted that the applicant/accused is not entitled to concession of bail in the instant crime as he is the mastermind of the main crime, as the applicant, along with other co-accused persons in the aforesaid crime, has committed brutal murder of deceased Aaqib Hussain Shahani, who was a boy of tender age. It is further contended by the learned counsel that the recovery of the arms and ammunition as detailed in the FIR has been effected on the pointation of the present applicant in the presence of private musheers, whereas, the FSL report confirmed that the recovered pistol was used in commission of murder of deceased Aaqib Hussain Shahani, which was committed at the instance of present applicant with his connivance and abetment with the absconding co-accused persons nominated in Crime No.12/2014 under Sections 302/114/109 PPC read with Sections 6 and 7 of Anti-Terrorism Act, 1997, registered at P.S. GOR, Hyderabad, whereas, the bail application of the present applicant in the aforesaid crime has already been rejected by this Court vide order dated 12.12.2014 passed in Crl. Bail Application No.1109/2014. Learned counsel further submitted that the present applicant has accepted his guilt by recording his statement before the Superintendent of Police, whereas, the other connecting material including video/audio recording and CDR data of applicant’s mobile also establishes the guilt of the present applicant in commission of a heinous crime, which is punishable with death or life imprisonment, as cold blooded murder of a young boy of 17 years of age has been committed by the applicant and co-accused persons with the motive to revenge the so called insult and injury to applicant. Learned counsel further submitted that the recovery of the crime weapon on the pointation of the present applicant is infact a discovery in terms of Article 40 of Qanun-e-Shahadat Order, 1984, whereas, provisions of Sections 24 and 25 of the Sindh Arms Act, 2013, are also attracted in the instant case as the present applicant was in control and in constructive possession of the said arms and ammunition. Learned counsel has also referred to provision of Section 21-M (1) and (2) of the Anti-Terrorism Act, 1997, and submitted that since instant crime is connected with the main crime of murder, hence it is to be tried by the same Court i.e. Anti-Terrorism Court, therefore, the evidence and the material in the instant crime will be considered for the trial in respect of main crime i.e. 12/2014 and vice-versa. Per learned counsel, since the applicant has complete knowledge about the recovered arms and ammunition, including the pistol which was used in the commission of murder of deceased Aaqib Hussain Shahani, therefore, he was in control of such arms and ammunition. While concluding his arguments, learned counsel for the complainant submitted that the applicant is not entitled to grant of bail in the instant crime, hence the bail application may be dismissed keeping in view the order already passed in main case (Crime No.12/2014), whereby, the bail application of the present applicant was dismissed by this Court. In support of his contention, learned counsel for the complainant has placed reliance in the following case law:-
1. Mst. Askar Jan and others vs. Muhammad Daud and others 2010 SCMR 1604.
2. Allah Warayo vs. The State 1978 P.Cr. L.J 241
5. Learned APG has also opposed the grant of bail to the applicant on somewhat similar ground as raised by the learned counsel for complainant and has submitted that since both the crimes are connected and are triable by the same Anti-Terrorism Court in terms of Section 21-M of the Anti-Terrorism Act, 1997, and may be disposed of through common judgment, therefore, in view of sufficient material available with the prosecution in both the cases, the applicant is not entitled to be released on bail. It is further contended by the learned APG that without prejudice to hereinabove, since the recovery of the arms and ammunition including the pistol, which was used in the actual commission of murder of deceased Aaqib Hussain Shahani has been effected on the pointation of the present applicant in the presence of private musheers, whereas, no malafide attributed to the prosecution in this regard, therefore, in view of provisions of Sections 23-A, 24, 25 and 21-M of the Anti-Terrorism Act, 1997, there is sufficient material available on record, which may connect the present applicant with the alleged crime, hence bail application of the applicant may be dismissed.
6. We have heard the learned counsel for the parties as well as learned APG and perused the record with their assistance. From tentative assessment of the record and from perusal of the contents of the FIR registered under Sections 24 and 25 of the Sindh Arms Act, 2013, it appears that the present applicant has been charged under the aforesaid Sections of Sindh Arms Act, 2013, in connection with another crime being No.12/2014 registered under Sections 302/109/114 PPC read with Sections 6 and 7 of Anti-Terrorism Act, 1997, on the ground that since the recovery of arms and ammunition, including the pistol, which according to prosecution was used in the commission of murder of deceased Aaqib Hussain Shahani, has been effected on the pointation of present applicant from the cattle pen owned by Ghulam Abbas Siyal and Iqbal Punjabi, the co-accused persons in the aforesaid crime, therefore, the present applicant was in control and in constructive possession of the said arms and ammunition, which was used in the commission of murder of deceased Aaqib Hussain Shahani, hence, liable to be punished under the provisions of Arms Act, 2013 as well.
7. However, from perusal of contents of FIR and tentative assessment of the material available on record, it appears that the prosecution in the instant case did not allege that the arms and ammunition recovered on the pointation of the present applicant is either owned or has been recovered from physical possession of the applicant nor it has been alleged that the present applicant has used such arms and ammunition for commission of an offence of murder of Aaqib Hussain Shahani. The recovery of arms and ammunition as per prosecution case has been effected from a place which is reportedly owned by the co-accused persons namely Ghulam Abbas Siyal and Iqbal Punjabi after having broken the locks, however, it is not clearly mentioned either in the FIR or in the Musheernama of recovery as to whether the actual place from where the recovery has been effected was duly pointed out by the present applicant or not? Though there is substance in the submissions made by the learned counsel for the complainant and the learned APG to the fact that in terms of Section 21-M of the Anti-Terrorism Act, 1997, the learned Anti-Terrorism Court is competent to proceed with the main offence i.e. Crime No.12/2014 under Sections 302/109/114 PPC read with Sections 6 and 7 of the Anti-Terrorism Act, 1997, as well as instant connected crime registered against the present applicant under Sindh Arms Act, 2013, however, at this stage of the proceedings when no charge has been framed by the learned trial Court nor any order has been passed to the effect as to whether both the crimes against the present applicant registered under the Anti-Terrorism Act, 1997 and Sindh Arms Act, 2013 will be jointly proceeded, therefore, it will not appropriate to record any finding to this effect as it might prejudice the case of either party and would influence the decision of the learned trial Court in this regard. We are also mindful of the fact that while refusing the bail application of the present applicant in the main offence i.e. Crime No.12/2014 registered under Section 302/109/114 PPC read with Sections 6 and 7 of Anti-Terrorism Act, 1997, registered at P.S. GOR, Hyderabad, we have taken note of the recovery of the arms and ammunition, including the pistol which as per prosecution has been used in the commission of murder of Aaqib Hussain Shahani, at the pointation of the present applicant, however, only as one of the factors and as a connecting material, which prima-facie create a link and connection of the applicant with co-accused persons in the main crime, and would connect him with an offence of abetment by instigating and conspiracy with the co-accused persons in commission of murder of deceased Aaqib Hussain Shahani. As regards ownership, possession, use of arms and ammunition, which as per prosecution has been recovered on the pointation of present applicant, there seems no allegation by the prosecution against the present applicant, whereas, the allegation of having control of the present applicant on such arms and ammunition requires further inquiry as the prosecution could not point out any sufficient material, which may establish the control of the present applicant over the arms and ammunition which has been reportedly recovered on the pointation of present applicant from the place owned by the co-accused persons, and that too after having ‘break open’ the locks. We have further noted that the prosecution did not produce any material which may suggest that the recovery of the arms and ammunition has been effected from the actual place of concealment, which was in the knowledge of the present applicant, hence the matter requires further inquiry in this regard as well.
8. In view of hereinabove, we are of the opinion that the applicant namely Sikandar Ali Lashari, has made out a case for his release on bail in the instant crime as the matter requires further inquiry. Accordingly, the applicant is admitted to bail subject to furnishing his solvent surety in the sum of Rs.500,000/- (Rupees Five Lac Only) with P.R. Bond in the like amount to the satisfaction of the trial Court.
9. Needless to observe that the observations made hereinabove are tentative in nature and would have no bearing either on the main case against the applicant i.e. Crime No.12/2014 or on the merits of the instant case, whereas, the learned trial Court shall not be influenced by any such observations and shall decide the case strictly on merits, keeping in view the material and the evidence which will be produced at the time of trial.
10. However, it is clarified that if the applicant misuses the concession of bail in any manner, the learned trial Court shall be at liberty to proceed against the applicant as per law.
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