Order Sheet
IN THE HIGH COURT OF SINDH KARACHI
Criminal Bail Application No. 1235 of 2014
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Date |
Order with signature of Judge |
Applicant : Sohail Adnan through Qazi Muhammad Arshad,
Advocate.
Respondent : The State through Mr. Zahoor Shah,
Assistant Prosecutor General.
Date of Hearing : 24.07.2014.
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Nadeem Akhtar, J. – This Application has been filed by the applicant / accused under Section 497 Cr.P.C. praying that he may be admitted to bail pending trial in Crime No.221/2014 under Section 23(1)(a) of the Sindh Arms Act, 2013 (‘the Act’), registered at Police Station Ferozabad, Karachi East.
2. The relevant facts of the case are that an F.I.R. was lodged on 05.05.2014 at 1150 hours by A.S.I. Qurban Ali / the complainant with Police Station Ferozabad, Karachi East, against the applicant / accused. It was stated in the F.I.R. that the complainant along with his subordinate staff / police officials was patrolling in police mobile No.III ; at 1100 hours when they were coming from Tariq Road and reached the Allahwala Chowrangi, they saw a suspicious young boy on a motorcycle coming from Noor Chowrangi ; he was asked by the police party to stop, but he tried to escape ; however, the police party managed to get hold of him ; and, upon inquiry, he disclosed his name as Sohail Adnan S/O Abdul Rehman, the present applicant / accused. It is alleged in the F.I.R. that due to non-availability of independent witnesses, personal search of the applicant was conducted by the police officials, when one 30 bore pistol without number with loaded magazine and three live rounds was recovered from the applicant. The applicant was asked to produce the license of the above weapon, but he failed to produce the same. One blue Honda motorcycle bearing registration No.KEZ-9983 without papers and one Nokia mobile phone were also recovered from him. It is also stated in the F.I.R. that after recovering the weapon, the applicant was taken into police custody and the weapon was sealed ; and, after returning to the police station, the case was registered against the applicant under Section 23(1)(a) of the Act, and S.I. Muhammad Sachal was appointed as the investigating officer. After completion of the investigation, challan was submitted before the trial court. The applicant filed Bail Application No.1234/2014 before the learned trial Court, which was dismissed vide order dated 28.05.2014.
3. The learned counsel for the applicant, contended that the applicant is innocent ; the alleged case property never belonged to him nor was it ever recovered from him ; the alleged recovery has been foisted upon the applicant by the police ; and, he has been falsely and maliciously implicated by the police in this false and fictitious case. He further contended that admittedly there are no independent witnesses and all the alleged witnesses are police officials, due to which the story of the prosecution cannot be believed. He submitted that the allegations made against the applicant and the case that has been set up against him, are yet to be proved through evidence, therefore, this is a case which requires further inquiry. It was urged that the alleged offence does not fall within the prohibitory clause of Section 497 Cr.P.C.; the applicant has not been convicted of any offence in the past ; and, he shall neither abscond nor tamper with the evidence in case bail is granted to him. It was further urged that the Bail Application filed by the applicant was wrongly dismissed by the trial Court without appreciating the facts and evidence on record.
4. Mr. Zahoor Shah, learned Assistant Prosecutor General, Sindh, opposed this bail application by submitting that the applicant was in illegal possession of the weapon that was recovered from him, and he was arrested on the basis of the said recovery. He contended that the allegation made by the applicant against the police officials of foisting a false case, is baseless as no enmity with the police officials or malafides on their part has been alleged by the applicant. Regarding the absence of independent witnesses, he contended that bail cannot be granted on this ground. It was urged that the offence committed by the applicant falls within the prohibitory clause of Section 497 Cr.P.C. as Section 23(1)(a) of the Act provides maximum punishment of 14 years and fine.
5. I have heard the learned counsel for the applicant / accused and the learned Assistant Prosecutor General Sindh for the State, and have also gone through the record. In a recent case ; namely, Ayaz Ali V/S The State, PLD 2014 Sindh 282, after examining and comparing Sections 23(1)(a) and 24 of the Act, it was held by a learned single Judge of this Court that Sub-Section 1(a) of Section 23 of the Act deals with situations where one acquires, possesses, carries or controls any firearm or ammunition in contravention of Section 3 of the Act (i.e. ‘license for acquisition and possession of firearms and ammunition’) ; and whereas, Section 24 of the Act provides punishment for possessing arms or ammunition, licensed or unlicensed, with the aim to use the same for any unlawful purpose. It was further held that since maximum punishment up to 14 years is provided in Section 23(1)(a) and Section 24 provides punishment up to 10 years, maximum punishment in the case of recovery of a pistol, which falls within the definition of “arms” in terms of Section 2 of the Act, will be 10 years under Section 24 of the Act. It was also held that the question of quantum of punishment has to be determined by the trial Court as to whether the accused would be liable to maximum punishment or not, and in case of his conviction, whether his case would fall under the prohibitory clause or not. It was observed in the cited case that all the witnesses were admittedly police officials, and the accused was no more required for further investigation. In view of the above observations and findings, it was held inter alia that the case was that of further inquiry, and accordingly bail was granted.
6. In a more recent case ; namely, Criminal Bail Application No.1010/2014 (Muhammad Shafique V/S The State) decided by me on 11.07.2014, I have observed that the terms “arms” and “firearms” have been separately and distinctly defined in Clauses (c) and (d), respectively, of Section 2 of the Act ; amongst many other articles designed as weapons of offence or defence, “pistols” are included in the definition of “arms” in Clause (c) ibid and not in the definition of “firearms” defined in Clause (d) ibid ; the punishment and penalty for acquiring, possessing, carrying or controlling any “firearm” or ammunition in infringement of Section 3 of the Act, is provided in Section 23(1)(a) of the Act, which is imprisonment for a term which may extend to 14 years and with fine ; and, whereas, the punishment for possessing “arms” or ammunition, licensed or unlicensed, with the aim to use them for any unlawful purpose etc., is provided in Section 24 of the Act, which is imprisonment for a term which may extend to 10 years and with a fine. I have held in the aforementioned case that the above clearly shows the intention of the legislature that not only are the offences in relation to “arms” and those relating to “firearms” to be dealt with separately as provided in the Act ; but since punishments having different terms in respect of “arms” and “firearms” have been specified separately in the Act, punishment under Section 23(1)(a) of the Act cannot be awarded for an offence committed under Section 24 of the Act, and vice versa.
7. As observed above, amongst many other articles designed as weapons of offence or defence, “pistols” are included in the definition of “arms” in Clause (c) ibid and not in the definition of “firearms” defined in Clause (d) ibid. Adverting to the facts of the present case, the prosecution has alleged that one 30 bore pistol was recovered from the applicant, but he was booked and has been challaned under Section 23(1)(a) of the Act, which is applicable to “firearm or ammunition” and not to “arms”. It will be for the trial Court to decide as to whether the provisions of Section 23(1)(a) ibid will apply to the applicant’s case or not.
8. It is an admitted position that all the witnesses are police officers and no attempt was made by them to search for independent witness(s) although applicant was arrested at 1100 hours in broad day light and the place of arrest was a common thoroughfare. The F.I.R. does not even suggest that the police officials first tried to search for independent witness(s), but when no such witness was found, only then they themselves searched the applicant and prepared the memo of arrest and recovery.
9. Since investigation has been completed and challan has been submitted before the trial Court, the applicant will not be required for any further investigation. In such circumstances, there is no possibility of tampering in the case of the prosecution by the applicant. The guilt or innocence of the applicant is yet to be established as it would depend on the strength and quality of the evidence that will be produced by the prosecution and the defense at the time of the trial ; and, the trial Court shall have to decide whether the case of the applicant falls within the ambit of Section 23(1)(a) of the Act or not. In view of the above discussion, this is a case which requires further inquiry in my humble opinion, and I am convinced that the applicant has made out a case for the grant of bail.
10. Foregoing are the reasons of the short order announced by me on 24.07.2014, whereby this bail application was allowed and the applicant was admitted to post-arrest bail subject to his furnishing solvent surety in the sum of Rs.50,000.00 (Rupees fifty thousand only) and a P.R. Bond in the like amount to the satisfaction of the trial Court. It is hereby clarified that the observations made and the findings contained herein shall not prejudice the case of any of the parties, and the trial Court shall proceed to decide the case on merits strictly in accordance with law.
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