ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                                Cr.Bail.Appl.No.S- 373  of  2015

DATE        ORDER WITH SIGNATURE OF JUDGE

05.10.2015.

Mr. Muhammad Shafique Khan, Advocate for applicant.

Mr. Iram Ahmed, D.D.P.P. for the State.

                                    =

ABDUL MAALIK GADDI, J:         Applicant / accused seeks post arrest bail in Crime No.30/2015 u/s 23-A Sindh Arms Act, registered at P.S. Hali Road, Hyderabad. Applicant had applied for post arrest bail before the learned trial Court but the same was rejected vide order dated 18.03.2015.

2.         Precisely, it is alleged that on 15.02.2015 at 2330 hours, applicant/accused was found in possession of unlicensed 30-bore pistol by police party headed by ASI Muhammad Alam of P.S Hali Road during patrolling. Thereafter such FIR was lodged. After usual investigation applicant was sent up for trial.

3.         Learned counsel for the applicant inter alia contends that the place of recovery was busy road where police was patrolling thus accessible to common persons but no private person has been cited as mashir, thus the alleged recovery of pistol is highly doubtful; the pistol has not been certified from the expert to ascertain its working condition; the alleged pistol was not sealed at the spot; Section 23-A is misapplied by the police; maximum punishment is upto 10 years however, lesser punishment can be considered at bail stage; instant case falls within the scope of further inquiry.

4.         Conversely, learned D.D.P.P. has opposed this bail application by arguing that applicant / accused was apprehended at the spot in presence of mashirs who have no inimical terms with the present applicant / accused. He further argued that this applicant is involved in some other criminal cases and if at this stage he is granted bail, certainly he would repeat the offence and would also involve in criminal activities. He has further argued that offence under which the present applicant / accused is booked falls within the prohibitory clause of Section 497 Cr.P.C. In support of his contentions, he has placed reliance on the case of Shah Jahan v. The State, reported in SBLR 2015 Sindh 796.

5.         After careful consideration of contentions raised by learned counsel for the applicant and meticulous examination of available record, it is an admitted position that the case has been challaned. Applicant is no more required for investigation. The prosecution witnesses are police officials, therefore, there is no apprehension of tampering of the prosecution evidence. There is nothing on record to show that applicant is previous convict. This applicant / accused has already been granted bail in the main case / crime No.29/2015 u/s 324, 353, 34 PPC of P.S Hali Road and this is the off shoot of that case. Since the whole case of the prosecution rests upon the evidence of police officials, therefore, their evidence requires thoroughly scrutinize by the trial Court at the time of trial whether the offence has taken place in a fashion as alleged by the prosecution or otherwise as such this fact requires further probe. Merely, arguing that this applicant / accused is involved in some other criminal cases does not debar the applicant / accused for grant of bail, if otherwise he is entitled for bail. Admittedly, this applicant / accused is not a previous convict. The applicant / accused is in jail since 15.02.2015 and since then not a single witness has been examined by the prosecution.   

6.         In view of what, I have observed above, the applicant has succeeded to make out his case within purview of sub-section 2 of Section 497 Cr.P.C hence he is admitted to post arrest bail subject to his furnishing solvent surety in the sum of Rs.100,000/- (One lac) and P.R. Bond in the like amount to the satisfaction of trial Court.

                                                                                                                              JUDGE

Tufail