IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Cr. Bail Appln. No. D-60 of 2024

		Before Mr. Justice Shamsuddin Abbasi Mr. Justice Jan Ali Junejo
Applicants		Nabeel Ahmed s/o Rafique Ahmed Zakir Hussain s/o Muhammad Sahib Through Messrs Mr. Athar Abbas Solangi and Shahabaz Ali M. Brohi, advocates
The State		Mr. Aitbar Ali Bullo, D.P.G
Date of hearing		27-03-2025
Date of order		27-03-2025

O R D E R

Shamsuddin Abbassi, J.- Applicant Nabeel Ahmed s/o Rafique Ali and Zakir Hussain s/o Muhammad Sahib, seek post arrest bail in FIR No.19/2024 of PS Mouladad, for offence u/s 23(i)(a) Sindh Arms Act, 2013 r/w section 6/7 of Anti-Terrorism Act, 1997, after rejection of their bail plea by learned trial court vide order dated 29-08-2024.

02. Facts depicted in the impugned order are reproduced herein under:-

Brief facts of the prosecution case giving rise to this application as disclosed in the FIR lodged by complainant Inspector/SHO Ishtiaque Ahmed Pathan at PS Mouladad District Jacobabad on 19-04-2024 at 2100 hours are that on the same date, he received spy information that operation of police against culprits/dacoits is going on in Shikarpur, Ghotki, Kashmore and smugglers of arms and ammunition namely Akhtiar Ali @ Zahid Hussain Lashari and others were taking arms and ammunition in double door vehicle from Baluchistan to Shikarpur in order to use in terrorism. On receipt of such information, complainant/police party left PS vide roznamcha entry No.16 at 1900 hours and reached at bypass road railway phattak Jacobabad at 1920 hours and were checking vehicles. At about 1930 hours, they saw from western side road, double door vehicles by escorting one police mobile were coming, they signaled to stop but on seeing police party, drivers of said vehicles tried to go back but police party got stopped them, they saw four persons in vehicle bearing registration No.CU-1590 Sindh Toyota Hilux were boarded who on inquiry disclosed their names as 01.Akhtiar Ali @ Zahid Hussain s/o Soobo @ Mir Muhammad Lashari, 02.Zakir Hussain s/o Muhammad Sahib Bhayo, 03.Nabeel s/o Rafique Ahmed Bhayo all r/o village Jagan District Shikarpur, 04.Taufique Ahmed s/o Muhammad Rafique Gujar r/o Labour Chowk Dera Murad Jamali Baluchistan. On plastic bag/bachka containing chain belts with 670 bullets of LMG and 200 bullets of G-3 was lying in front of accused Akhtiar Ali and Zakir Hussain. On rear seat, accused Nabeel Ahmed and Taufique Ahmed were sitting and one plastic bag/bachka containing 1118 bullets of 7.62 bore, 16 magazines of G-3 and 02 magazines of SMG containing live bullets was lying in front of their feet. On further inquiry, they disclosed that they had brought the same from Baluchistan and were taking to Shikarpur for selling the same to criminals and police personnel boarded in police mobile are their helper. The complainant/police party saw police mobile which was bearing registration No.SPN-375 and found two persons were sitting in front side and one was sitting in rear side who on inquiry disclosed their names as 01. ASI Imtiaz Ali s/o Muhammad Sharif Bhayo r/w village Jagan District Shikarpur, 02. PC Sanaullah s/o Ali Nawaz Maganhar r/o village Jaggan District Shikarpur, 03. PC Baqaullah s/o Karamullah Unar r/o Unar Colony Shikarpur and secured one SMG along with magazine loaded with 26 live bullets from PC Sanaullah and one G-3 along with magazine loaded with 18 live bullets. The both accused further disclosed that they had come in help of accused Akhtiar and others, the accused failed to produce valid license/permit of weapons. Due to non-availbility of private persons, complainant/SHO appointed HC Awal Khair and PC Muhammad Khan as mashirs, arrested all the above named accused, on their bodily search, secured one touch mobile VIVO of white color containing SIM, one mobile Vigo Tel of black color containing SIM, two currency notes of Rs.1000/- each from accused Akhtiar Ali, one mobile of Vigo Tel containing SIM and one currency note of Rs.500/- from left side pocket of accused Nabeel and sealed all the secured property separately so also seized the vehicles including police mobile and prepared such mashirnama and thereafter brought the arrested accused along with secured property and vehicles at PS where complainant/Inspector lodged such FIR against the above named accused on behalf of state to the above effect.

03. Learned counsel for applicants contended that applicants are innocent and they have been falsely implicated in this case with mala fide intention; that there is joint recovery and FIR does not demonstrate exclusive possession of any arms or ammunition; that applicant Zakir is juvenile offender as his age is 15 years as per school leaving certificate; that alleged offence does not come within the ambit of prohibitory clause of section 497 Cr.P.C; that case has been challaned and applicants are no more required for further investigation. That learned trial court is lying vacant and applicants are in custody since last one year without progress in the trial.

04. Learned APG opposed the grant of bail on the ground that applicants are involved in transporting huge quantity of arms and ammunition, therefore, they are not entitled for grant of bail. However, he admits that learned trial court is lying vacant; that applicant is adult and during investigation he was examined by competent medical board and issued certificate that he is aged about 18/19 years old.

05. Heard learned counsel for applicants, learned APG and perused material available on the record.

06. From perusal of record, it appears that applicants were involved in transportation of huge quantity of ammunition (bullets and magazines). Alleged recovery was not effected from exclusive possession of applicants and it was effected from vehicle and complainant has prepared joint Mashirnama of recovery. Learned trial court has granted post-arrest bail to co-accused A.S.I. Imtiaz Ali, P.C Sanaullah and P.C Baqaullah, who were allegedly providing protection for transportation of arm and ammunition. Learned trial court while granting bail to them considered the fact that there is no independent eye witnesses of the alleged recovery and all the witnesses are police officials.

07. It is settled by now that while deciding the bail application the lesser punishment provided in the law is to be considered. The above-said section provides the punishment for a term which may extend to 14 years, the word may is used in the provision which provides discretion to the courts in punishing the accused found guilty after complete trial. Keeping in view the above punishment provided in section 23(i)(a) of S.A. Act, 2013, the offence as alleged against the applicants does not fall within the ambit of section 497(1), Cr.P.C. The grant of bail in cases covered under the said provision is rule and refusal is an exception. Reliance is placed in cases of Tariq Bashir v. The State (PLD 1995 SC 34) and Muhammad Tanveer v. The State and another (PLD 2017 SC 733). Case has been challaned and applicants are no more required for further investigation. Applicants are in custody since 19.04.2024 without progress in the trial. It has been informed that learned trial court is lying vacant since last five months and no one can be kept incarceration for indefinite period as a measure of advance punishment. Sufficient grounds are available on record which calls for further enquiry in terms of Section 497(2) Cr.P.C, therefore, applicants are admitted on bail subject to furnishing solvent surety in the sum of Rs.100,000/- each and P.R bonds in the like amount to the satisfaction of learned trial court.

08. The above observation made herein is tentative in nature and would not prejudice the case of either party in trial.

J U D G E

Abdul Salam/P.A