ORDER SHEET

 

IN THE HIGH COURT OF SINDH AT KARACHI

 

Criminal Bail Application No. 68 of 2015

 

DATE

ORDER WITH SIGNATURE OF JUDGE.

 

 

For hearing.

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27th April, 2015

 

Mr. Syed Abid Hussain Kazmi Advocate for the applicant/accused.

Mr. Abrar Ali Khichi APG.

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            NAIMATULLAH PHULPOTO, J.- Applicant/ accused Muhammad Ismail seeks bail after arrest in Crime No. 218/2014, registered at PS Korangi on 23.09.2014, for offence under Section 23(1)A of the Sindh Arms Act, 2013.

 

2.         Brief facts of the prosecution case as disclosed in the FIR are that on 23.09.2014 SIP Muhammad Mushtaque of PS Korangi, left Police Station along with his subordinate staff for patrolling duty. Police party while patrolling at various places when reached at Link Road near Nala, Sector 32/A Korangi, it was 11:45 hours, where present accused while seeing police mobile tried to conceal himself. Police party surrounded and caught him hold. On enquiry, applicant/accused disclosed his name as Muhammad Ismail son of Noorul Kabeer. His personal search was conducted in presence of the mashirs. During search 30 bore pistol without number having four live rounds were recovered from his possession, for which he had no licence. He was arrested in presence of the mashirs. Mashirnama of arrest and recovery was prepared. Thereafter accused and case property were brought at Police station, where, FIR under the above referred Section was lodged.

 

3.         After usual investigation, challan was submitted against the accused under Section 23(1)A of the Sindh Arms Act, 2013.

4.         Bail application was moved on behalf of the applicant/accused before the learned 1st Additional Sessions Judge, Karachi East, the same was rejected by her vide order dated 12.11.2014, thereafter, the applicant/accused has approached this court.

 

5.         Syed Abid Hussain learned counsel for the applicant/accused contended that pistol was without number. It is further contended that since last 04 months prosecution has failed to frame the charge against the accused. It is argued that SIP Muhammad Mushtaque has foisted T.T.Pistol  upon the applicant/accused for the malafide reason and the maximum sentence as provided in law shall not be awarded to the accused. In support of his contentions, reliance has been placed upon the Jamaluddin alias Zubair Khan vs. The State (2012 SCMR 573) and unreported order dated 07.04.2015, passed in Criminal Bail Application No. 115/2015.

 

6.         Mr. Abrar Ali Khichi learned APG argued that TT Pistol without number has been recovered from the possession of the accused for which he had no licence. He has also argued that 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 TT Pistol which has been allegedly recovered from the possession of the accused was without number. It is contended that it is easy to foist without number pistol upon any person. Case has been challaned. It is argued that since last four months charge has not been framed against applicant/accused by the trial Court. All the P.Ws are police officials, there is no question of tempering with the prosecution evidence. Needless to mention here that Courts while hearing the 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.”

 

8.         That applicant/accused has been arrested on 23.09.2014 and case has been challaned and applicant/accused has been in jail since 23.09.2014, yet commencement of his trial let alone its conclusion is not in sight, as charge has not been framed, would also tilt the scales of justice in favour of bail rather than jail. Keeping in view the 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 Muhammad Ismail son of Noorul Kabeer is admitted to bail subject to his furnishing solvent surety in the sum of Rs.75,000/- (Rupees Seventy Five Thousand only) and P.R bond in the like amount to the satisfaction of the Trial Court.

 

9.         Needless to mention here that observations made hereinabove are tentative in nature and would not influence the Trial Court while deciding the case of the applicant/accused on merits.

 

JUDGE