IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Criminal Bail Application No.S-535 of2021
Applicant : Dilawar s/o Ghulam Hussain @ Abdul Razzaque Kosh, through Mr.
Shabbir Ali Bozdar, advocate
Respondent : The
State, through Mr. Shafi Muhammad Mahar, Deputy Prosecutor General, Sindh
Date of hearing : 13.09.2021
Date of order : 13.09.2021
--------------
ORDER
--------------
ZAFAR
AHMED RAJPUT, J.- Applicant/accused named above being abortive to get
the concession of post-arrest bail from the Court of III-Additional Sessions
Judge, Mirpur Mathelo in Cr. Bail Application No. 1170 of 2021, vide order
dated 24.08.2021, through the instant application seeks the same concession
from this Court in Crime/FIR No. 16 of 2021, registered at Police Station Yaro
Lund under section 23 (1) (a), Sindh Arms Act, 2013 (the “Act”).
2. As per
F.I.R., the applicant was arrested on 10.08.2021, at 1200 hours, by a police
party headed by HC Sharfuddin Malik,while acting upon a tip-off, on being found
in possession of one unlicensed 30 bore pistol with magazine and three live
bullets at Malkan Wari Bridge in presence of mashirs, namely, PC Rashid Ali and
PC Muhammad Ali.
3. Learned counsel for the applicant has
mainly contended that applicant is innocent and has committed no offence and
the alleged pistol has been foisted upon him; that the applicant has been
involved in a false case by the police on the instigation of local feudal
lords, as there is enmity going on between the Shar and Kosh communities; that
the pistol does not come within the definition of firearms or ammunition but
within arms and hence the police has misapplied section 23 (1) (a) at the place
of section 24 of the Act, which offence does not fall within the prohibitory
clause of section 497, Cr.P.C. being punishable with imprisonment for a term
which may extend to ten years; that despite prior information, police failed to
associate any private mashir and thus the alleged recovery is in violation of
section 103, Cr. P.C.
4. Conversely,
Learned D.P.G,has maintained that the Sindh Arms Act, 2013 has been enacted to
curb the proliferation of arms and ammunition in the society and since offence
falls within the prohibitory clause of section 497, Cr.P.C. he opposed the
application.
5. I have heard
the learned counsel for the applicant, learned D.P.G.and perused the material
available on record with their assistance.
6. In order to
appreciate the contentions of learned counsel for the applicant, I deem it
appropriate to reproduce the relevant provisions of section 23 (1)(a) and
section 24 of the Act,as under:
23. Punishment for certain offences.-(1)
Whoever -
(a) acquires, possesses, carries or control
any firearmorammunition in infringement of section 3, shall
bepunishablewithimprisonment for a termwhich mayextend to fourteen years and
with fine;
24. Punishment for possessing arms with
intent to use for unlawful purposes. - Whoever possesses arms or
ammunition licensed or unlicensedwith the aim to use them for any unlawful
purpose or to facilitateany other person to use them for any unlawful purpose
shall,whether such unlawful purpose has been materialized or not, thelicense holder,
the user and the person who has no license, bepunishable with imprisonment for
a term which may extend to tenyears and with fine.
(Emphasis
supplied)
Terms “firearm”,“ammunition” and “arms” have been
defined under section 2 (b), (c) and (d) of the Act, as under:
2. Definitions.-in
this Act, unless there is anything repugnant in the subject or context:-
(a) -----------------------------------------------------------------
(b) “ammunition”
means ammunition for any firearm, andincludes –
(i)
rockets, bombs, gun powder, shells,
detonators,cartridges, grenades;
(ii)
articles designed for torpedo service and
submarinemining;
(iii) other articles containing, or designed or
adapted tocontain, explosive, fulminating or fissionable materialor noxious
liquid, gas etc. whether capable of usewith firearms or not;
(iv) chargesforfirearms and accessories for
suchcharges;
(v) fuses
and friction tubes; and
(vi) parts and machinery for manufacturing
ammunition;
(c) “arms” means articles, designed as
weapons of offence ordefence and includes rifles, pistols, revolvers ,
grenades,swords, bayonets, and other lethal weapon. It shall alsoinclude
machinery (and its parts) for manufacturing arms,but excludes articles designed
solely for domestic oragricultural purposes and weapons incapable of beingused
otherwise that as toys or of being converted into
serviceable weapon;
(d) “firearms” means weapons designed to discharge aprojectile or
projectiles of any kind by the action of gunpowder or any explosive or other
forms of energy andincludes –
(i) artillery hand-grenades, riot-pistols or
weapons ofany kind designed for the discharge of any noxiousliquid, gas etc.;
(ii) accessories for any such firearm, intended to
diminishthe noise or flash caused by the firing thereof;
(iii) parts of, and machinery for manufacturing
fire-arms;and
(iv) carriages, platforms and appliances for
mounting,transporting and serving artillery;
7. The applicant has been booked in the
instance case for an offence under section 23(1)(a) of the Act for allegedly
possessing one unlicensed “pistol”. It appears from the bare reading of the aforementioned
provisions of the Act that the “pistol” does not come within the definition of firearm
and ammunition described in Section
23 (1)(a) of the Act, as defined under section 2 (b) and (d) (ibid) but
within the purview of arms as expressed under section 24 of the Act and defined
under section 2 (c) (ibid). As such, looking to the facts of the FIR, it
is not the section 23 but 24 of the Act which is apparently applicable to the
case of the applicant, which provides punishment with imprisonment for a term which may
extend to tenyears and with fine.
8. The applicant is confined in
judicial custody since the day of his arrest and police has submitted the challan
against him; hencehe is not required for further investigation. Despite prior
information, daylight and roadside, police failed to join any private person to
witness the search and recovery process.Record is also silent as to whether
applicant is a habitual or previous convict. All the witnesses are police
officials;therefore, there is no apprehension of tampering with the prosecution
evidence. The case of the applicant is pending for adjudicating into his guilt
before the trial Court. The discretion is however left open with the trial
Court by the legislature either to award maximum punishment of ten years
imprisonment to the applicant or to award lesser punishment keeping in view the
surrounding circumstances commensurate with the nature of the case. The Court
while hearing bail application does not have to keep in view the maximum
sentence provided by statute but the one which is likely to be entailed in the
facts and circumstances of the case.Therefore, keeping in view the facts and
circumstances of the case, prima facie, case against the applicant requires
further enquiry as contemplated under subsection (2) of Section 497 Cr.P.C.
Accordingly, the applicant is entitled to be released on bail.
9. In view
of above, the applicant is admitted to bail subject to his furnishing solvent
surety in the sum of Rs.50,000/- (fifty thousand) and P.R. Bond in the like
amount to the satisfaction of the trial Court.
10. The
observations made hereinabove are tentative in nature and would not influence
the trial Court while deciding the case of the applicant on merits.
JUDGE