Order Sheet
IN THE HIGH COURT OF SINDH KARACHI
Criminal Bail Application No. 1010 of 2014
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Date |
Order with signature of Judge |
For hearing :
Applicant : Muhammad Shafique through
Mr. Kabir Ahmed, Advocate.
Respondent : The State through Mr. Muhammad IqbalAwan,
Assistant ProsecutorGeneral, Sindh.
Date of hearing : 02.07.2014.
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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.23/2014 under Section 23(1)(a) of the Sindh Arms Act, 2013 (‘the Act’), registered at Police Station Mubina Town, Karachi East.
2. Briefly stated, the facts of the case are that an F.I.R. was lodged on 25.01.2014 at 04:00 a.m. by one S.I. Ali Akbar / the complainant with the Police Station Mubina Town Karachi East, against the applicant / accused. It was alleged in the F.I.R. that the complainant along with A.S.I. Muhammad Bakhsh Khoso, H.C. Liaquat Ali, P.C. Abdul Rasheed, P.C. Muhammad Younus and driver P.C. Shaikh Khalid, were patrolling in police mobile when they saw the applicant around 03:00 a.m. standing in a suspicious manner on Jhangwi Road, near Gabol Graveyard. The applicant was apprehended by the above named police officers, and on inquiry, he disclosed his name as Shafique S/O Abdul Hussain. It is stated in the F.I.R. that due to non-availability of independent witnesses, search of the applicant was conducted before A.S.I. Muhammad Bukhsh and H.C. Liaquat Ali, when one 30 bore pistol with magazine and four rounds was recovered from the left side folds of the shalwar of the applicant, who failed to produce the license of the said pistol. The handle (butt) of the pistol was covered with black tape, and an amount of Rs.120/- was also recovered from the applicant. It is also stated in the F.I.R. that after recovering the said pistol, the applicant was taken into police custody and the pistol was sealed ; the memo of arrest and recovery was prepared at the spot ; 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.P. Qaim Ali Rind was appointed as the investigating officer.
3. During the investigation, the investigating officer recorded the statements of the witnesses of the seizure memo under Section 161 Cr.P.C. ; recorded the statement of the applicant ; sent the case property to FSL for inspection ; and, challaned the applicant. Thereafter, the challan was submitted before the trial court. The applicant filed Bail Application No.1006/2014 before the learned trial Court, which was dismissed vide order dated 07.05.2014.
4. Mr. Kabir Ahmed, 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 officers, 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 is not punishable with death or life imprisonment ; 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. In support of his submissions, the learned counsel relied upon the case of Ayaz Ali V/S The State, PLD 2014 Sindh 282. It was urged that the Bail Application filed by the applicant was wrongly dismissed by the trial Court without appreciating the facts and evidence on record.
5. Mr. Muhammad Iqbal Awan, learned Assistant Prosecutor General, Sindh, opposed this bail application by submitting that the applicant was in illegal possession of the pistol, its magazine and rounds that were recovered from him, and he was arrested on the basis of the said recovery. He contended that there was no reason or occasion for the police officers to implicate the applicant in a false case, especially when 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 there was nothing unusual about it as the applicant was spotted and arrested at 03:00 a.m. It was urged that the offence committed by the applicant falls within the prohibitory clause of Section 497 Cr.P.C., and further that provisions of Section 23(1)(a) of the Act, being part of a special law, have an overriding effect over all other laws.
6. 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. I would first like to briefly discuss the case of Ayaz Ali (supra) decided in an exhaustive manner by a learned single Judge of this Court Mr. Justice Salahuddin Panhwar, which has been cited and relied upon by the learned counsel for the applicant. In the cited case, after examining and comparing Sections 23(1)(a) and 24 of the Act, it was held by the learned single Judge 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.
7. While agreeing with the observations and findings of my learned brother completely in the above cited case, I would still like to humbly add my own observations. The terms “arms” and “firearms” have been separately and distinctly defined in Clauses (c) and (d), respectively, of Section 2 of the Act. 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. 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. This 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.
8. It is to be noted that 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 an unlicensed 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.
9. I have noticed from the contents of the F.I.R. and challan that it is not the case of the prosecution that when the police party spotted the applicant at 03:00 a.m. and approached him for questioning, he tried to run away from the police or avoided to face them. On the contrary, it is an admitted position that the applicant, without any resistance, allowed the police to question him, search him and arrest him. It is also an admitted position that all the witnesses are police officers and no attempt was made by them to search for independent witness(s) although the place of arrest was a common thoroughfare. The F.I.R. does not even suggest that the police officers 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. I do not agree with the learned APG that the applicant has not alleged malafides on the part of the police, as specific allegations in this context have been made by him in grounds 1 and 2 in this application. Moreover, nothing has been mentioned in the F.I.R. about the denomination of the currency notes recovered from the applicant, as the prosecution has simply claimed that an amount of Rs.120/- was recovered from him.
10. The learned APG has fairly conceded that investigation has been completed, the matter is proceeding before the trial Court, and the applicant is not required for any further investigation. In such circumstances, there is no probability 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.
11. This bail application is, therefore, allowed and the applicant is 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 strictly in accordance with law.
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