ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Crl. Bail Application No. 1376 of 2015.

Crl. Bail Application No. 1377 of 2015.

Date Order with signature of Judges

Mr. Justice NaimatullahPhulpoto

Mr. Justice Abdul MaalikGaddi.

Date of hearing: 10.12.2015.

Date of Announcement: 17.12.2015.

Mr. M. Imran Meo, Advocate for Applicant.

Mr. Abrar Ali Khachi, A.P.G.

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ABDUL MAALK GADDI, J.- By this single order we intend to dispose of above numbered bail applications, which arise out of Crimes Nos. 281/2014 under Section 23(1)(a) of Sindh Arms Act, 2013 and 282/2014 under Section 4/5 of the Explosives Substance Act, 1908, read with Section 7 of the Anti-Terrorism Act, 1997, registered at Police Station Gulberg, Karachi.

2. Facts necessary for the disposal of the above bail applications are that on 13.12.2014 at about 1710 hours, complainant PI/SIO Syed Mohsin Hussain Zaidi lodged FIR Nos. 281 & 282 of 2014, under Section 23(1)(a) of Sindh Arms Act, 2013 and under Section 4/5 Explosive Substance Act, 1908 at Police Station Gulberg, stating therein that on the said date he alongwith his subordinate police officials was on patrolling duty in the area in order to arrest absconding accused wanted in crime No.331/2014 of P.S. Shahrah-e-Noor Jehan and when they reached Shahrah-e-Noor Jahan at service road in front of main road Shahrah-e-Pakistan near Khan Broast, Block-13, F.B. Area, they saw present applicant/accused in suspicious condition and apprehended him. During interrogation he disclosed his name as Syed Imran Ali @ Imrani son of Syed Sattar Ali. His personal search was conducted in presence of P.C. Nadeem Suleman and one private person namely Faisal son of Abdur Rehman and recovered one unlicensed 30 bore pistol alongwith magazine containing 2 live rounds as well as one Hand Grenade in green colour, on which ARGES HOLGR69 was embossed. Accused failed to produce license for the weapons carried by him. Therefore, two separate FIRs as mentioned above were registered.

3. During investigation ASI Abid Farooq of Bomb Disposal Unit, Special Branch Karachi, examined hand grenade ARGES HOLGR69, EOD Device and 30 bore pistol by Rana Hassan Javed and Farhaj Bukhari of Forensic Division, Sindh, Karachi respectively and submitted reports which are positive and available on record. On conclusion of usual investigation separate challans were submitted before the Anti-Terrorism Court, Karachi under Section 23(1)(a) of Sindh Arms Act, 2013 and 4/5 Explosive Substance Act, 1908 R/W Section 7 of Anti-Terrorism Act, 1997.

4. Bail applications on behalf of accused were moved before the trial Court which however, were dismissed vide order dated 21.09.2015 and now the instant bail applications have been moved.

5. Learned counsel for the applicant/accused argued that the applicant/accused is innocent and has been falsely implicated by the complainant/police with malafide intention. He further contended that the alleged recovery of 30 bore pistol and explosive substance were not recovered from the possession of the applicant and police malafidely involved the applicant/accused and managed false story in the FIRs. It is further contented that recovered pistol and hand grenade have been foisted upon him by police. Learned counsel further contended that on 01.12.2014 applicant was unlawfully arrested by law enforcing agencies from his house and forcibly taken him to some unknown place without any justification and the family members of the applicant approached the Police Station Mominabad but later on he has been involved in these cases. Lastly, he argued that complainant police officer had acted as Investigating Officer, which is not permissible under the law. In support of his contention, he has relied upon the cases reported as 1997 P.Cr. L.J 21 (Muhammad Yousuf v. The State) and 1999 P.Cr. L.J 225 (Akhtar Hussain Shah v. The State).

6. On the other hand, Mr. Abrar Ali Khichi, learned Assistant Prosecutor General, Sindh has vehemently opposed the grant of bail to the applicant/accused. He has submitted that applicant/accused was arrested on the spot and during his personal search one unlicensed 30 bore pistol alongwith magazine containing 2 live rounds as well as one Hand Grenade in green colour, on which ARGES HOLGR69 was embossed were recovered in presence of mashirs who have no enmity with the applicant/accused, coupled with positive report of Bomb Disposal Unit, Special Branch Karachi on record. Applicant/accuse is involved in these cases which are serious in nature and also fall within the prohibitory clause to Section 497 Cr.P.C.

7. We have carefully heard the learned counsel for the parties and perused the relevant record.

8. From the contents of the FIRs and other material collected during investigation. It appears that applicant/accused was arrested on 13.12.2014 and during his personal search one unlicensed 30 bore pistol alongwith magazine containing 2 live rounds as well as one Hand Grenade in green colour, on which ARGES HOLGR69 was embossed were recovered in presence of private witness namely Faisal son of Abdur Rehman and PC Nadeem Suleman who have no inimical terms with applicant/accused. During investigation recovered weapons were sent to Bomb Disposal Unit, Special Branch Karachi and Forensic Division, Sindh, Karachi respectively for inspection and their reports which are available on record as positive. ASI Abid Farooq of Bomb Disposal Unit, Special Branch Karachi, in its report has observed as under:-

“As per possible and readable observation that the above mentioned 01 in number Hand Grenade is EOD Device (Explosive Ordnance Device). If it used with proper technique alongwith detonator give loss of life and damage their property. The said Hand Grenade, opened made properly safe, sealed and handed over to PI/SIO Syed Mohsin Hussain Zaidi of PS Gulberg Karachi for case property alongwith clearance certificate signed by BD team and with the advised for safe handling.”

9. Learned counsel for the applicant/accused has argued that the complainant police officer has acted as Investigating Officer therefore his investigation cannot be safely relied upon. Reverting to the contention of the learned counsel for the applicant/accused it is suffice to say that no legal prohibition existed for a police officer to be complainant as well as Investigating Officer of a case. In this regard we are supported with case reported in PLD 2013 Sindh 586, Asif vs. The state as well as Mst. Ajab Sultana and another vs. the State, reported as 2003 P.Cr. L.J 82.

10. It is also argued by learned counsel for the applicant/accused that applicant was arrested much prior to registration of these FIRs therefore, his false implication cannot be ruled out. This fact has been denied by learned APG. Even otherwise, this is a disputed question of facts which cannot be decided in these bail applications. It is settled law that in deciding the bail applications, the Court has to make tentative assessment of the case and does not have to go into the details deliberation as raised in the bail applications.

11. The offence is punishable for a term extending to 10 years. Even otherwise having such hand grenade is a grave offence, undermining the law and order situation in Karachi. The Honourable Supreme Court of Pakistan in Crl: Petition Nos. 266 and 267 of 2014 has observed as under:-

“The petitioner seeks bail in two FIRs bearing Nos. 854 & 855 of 2013, registered on 13.12.2013 at P.S. CID, West Karachi. The reason why we had found it necessary to issue notice to the State is noted in our previous order dated 17.06.2014. Today the Deputy Prosecutor general, Sindh has appeared and has pointed out that the occurrence took place on 13.12.2013 at 11:00 p.m. and FIR was lodged on the same day at 11:50 p.m. The petitioner Muhammad Adnan was also arrested on the same day and physical remand for seven days was obtained from the competent Magistrate on 14.12.2013. Two live hand grenade in addition to arms and were recovered from the petitioner which were subsequently, defused by Bomb Disposal Squad.

2. The offense is punishable for a term extending to ten years. Even otherwise, having such ammunition is a grave offence undermining the law and order situation in Karachi.

3. For the foregoing reasons, we find the impugned order to be proper. We, therefore, find no justification for interfering in the same. Consequently, these petitions are dismissed and leave to appeal is declined.”

12. As observed above the applicant/accused is prima-facie involved in cases of serious in nature. Therefore, the result of the above discussion is that applicant has not been able to make out a case for bail, therefore, these bail applications are dismissed. It is pointed out by the learned APG that challans of the cases have been submitted in the trial Court, therefore, trial Court is directed to dispose of the cases expeditiously.

13. Needless to mention here that observations made here-in-above are tentative in nature and would not influence the trial Court while deciding the cases of the applicant on merit.

J U D G E

GoharPS