THE HIGH COURT OF SINDH AT KARACHI

Cr. Bail Application No.1082 of 2019

For hearing of Bail Application.

Applicant                    :           Muhammad Sharif son of Abdul Raheem

                                                Through Mr. Amanullah Kakar, Advocate.

Respondent                 :           The State Through Mr. Sagheer Abbasi,

Assistant Prosecutor General Sindh.

Date of hearings          :           23.8.2019

Date of Judgment       :           23.8.2019

ORDER

Abdul Maalik Gaddi, J. – Having remained unsuccessful in obtaining his release on bail from trial Court in Crime No.248/2019, registered under Section 6-9-C of CNS Act, 1997 at P.S. New Karachi Industrial Area, Karachi (Central). Now the applicant Muhammad Sharif is seeking his release on bail in the said crime through instant bail application.

2.         Facts of the case are that on 20.6.2019 at 0530 hours, applicant/ accused was arrested by the police party of PS North Karachi Industrial Area and recovered one SMG rifle 12 bore without number loaded with six live cartridges and magazine along with 2100 gram chars from his possession in presence of mashirs through a joint Mashirnama.

3.         Learned counsel for the applicant/ accused has argued that the applicant/ accused is quite innocent and was falsely implicated in this case; that nothing was recovered from the possession or pointation of the present applicant/ accused and the recovery of narcotics has been foisted upon him; that there is violation of Section 103 CrPC as no any private witnesses have associated by the prosecution though available on spot to witness the event, therefore, this aspect of the case requires further inquiry whether the offence has been taken place in a fashion as stated in FIR or otherwise; that the applicant has been granted bail in Crime No.249/2019 of PS New Karachi Industrial Area under Section 23(1)A of Sindh Arms Act and this case is also based on the same Mashirnama, therefore, this applicant/ accused is also entitled for bail.

4.         On the other hand, learned APG has opposed this bail application on the ground that the name of applicant/ accused is appearing in FIR with specific allegation that at the time of his arrest, police also recovered from his possession 2100 gram chars in presence of mashirs, who have no inimical terms with him, prima-facie shows the involvement of the applicant/ accused in this case.

5.         I have heard the learned counsel for parties at a considerable length and have gone through the case papers so made available before me.

6.         It is an admitted position that the case has been challaned and the present applicant/ accused is no more required for investigation. The whole case of the prosecution is based upon the evidence of police officials, therefore, their evidence is required to be minutely scrutinized at the time of trial. It appears from the record that at the time of alleged incident, the police party recovered one rifle of 12 bore like SMG and 2100 gram chars from the applicant, though two separate FIRs were registered for the alleged offences, but joint Mashirnama of arrest and recovery of the applicant was prepared in both the cases.

7.         It is stated by learned counsel for applicant that the present applicant has been granted bail by the trial Court in Crime No.249/2019 under Section 23(1)A of Sindh Arms Act at PS New Karachi Industrial Area on the basis of almost same allegations, therefore, this applicant/ accused is also entitled for same relief. When confronted this aspect of the case to learned APG for reply, he submits that though the applicant has been granted bail in the said crime but this case is altogether different.

8.         Perusal of police file shows that in both the cases, joint Mashirnama of arrest and recovery was prepared. No independent witnesses have been cited to witness the event. No explanation in this regard has been furnished by the prosecution why despite availability of private persons, the complainant did not join any independent person of the locality to witness the event. When again confronted this aspect of the case to learned APG, he has no plausible answer with him. It also appears from the record that on the basis of same set of evidence, the present applicant has been granted bail in Crime No.249/2019 under Section 23(1)A of Sindh Arms Act at PS New Karachi Industrial Area, while bail plea of the applicant in this case has been rejected, although, joint memo of arrest and recovery was prepared. In my tentative opinion, prosecution witnesses, if disbelieved, in other criminal case on the basis of joint memo, could not be relied upon with regard to accused in other case, unless they are corroborated by evidence, which came from unimpeachable independent source, which is apparently lacking in this case, as such, this point also requires further probe. During the course of arguments, learned APG has pointed out that this applicant is involved in many criminal cases of like nature, but nothing on record that present applicant/ accused has been convicted in any criminal case which was maintained up to the level of the Superior Courts. Merely pendency of the criminal case/ cases against any of the accused does not ipso facto disentitle the applicant for grant of bail, unless it has been ended into conviction by the Superior Courts.   

9.         It appears from the record that accused is behind the bars since his arrest and no substantial progress has been made in the trial by the trial Court, if the learned trial Court shall proceed the trial with such a speed, then the same would not conclude in near future. The speedy trial is the right of every person, therefore, even if the provision of Section 497 CrPC in ordinary course is not applicable to an accused person facing charges, broader principle of the same could be pressed into service in hardship cases to provide relief to a deserving accused person incarcerated in jail for a shockingly long period, therefore, further detention of the applicant for indefinite period in this case would not advance the prosecution case.

10.       In view of the above, I have come to the conclusion that the applicant/ accused has made out a case for grant of bail in his favour. I, accordingly, allow this bail application and the applicant is admitted to bail after his furnishing solvent surety in the sum of Rs.50,000/- and PR bond in the like amount to the satisfaction of the trial Court.

11.       Needless to mention here that observations, if any, made hereinabove are tentative in nature and would not influence the trial court while deciding the case of the applicant/ accused on merits. It may be mentioned here that in case during proceedings before trial Court, if applicant misuses the bail, then trial Court would be competent to cancel the bail of the applicant without making any reference to this court.

JUDGE

asim/pa