ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Cr. Bail Application No.1252 of 2014

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DATE                 ORDER WITH SIGNATURE(S) OF JUDGE(S) 

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          For hearing

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13.08.2014

            Mr. Abid Hussain Shah Kazmi, Advocate for Applicant

            Mr. Abdullah Rajput, A.P.G.

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NAIMATULLAH PHULPOTO, J.-This bail application has been moved on behalf of the applicant/accused Farooq Bashir son of Bashirullah,  arising out of Crime No.122 of 2014, registered at P.S. Shah Faisal Colony, Karachi East on 11.05.2014, under section 23(1)(a) of the Sindh Arms Act, 2013.

 

          Brief facts of the prosecution case as disclosed in FIR are that present applicant/accused was arrested in Crime No.121/2014 under sections 353/324/34 PPC and from his possession one 30 bore pistol, loaded with two bullets was recovered, for which applicant/accused had no licence. He was arrested in presence of mashirs, thereafter he was brought at P.S where the aforesaid F.I.R. was registered against him.

 

          After usual investigation challan was submitted against the accused under the above referred section.

 

          Bail application was moved on behalf of the applicant/accused before learned 1st Additional Sessions Judge, Karachi East, but the same was rejected vide order dated 03.07.2014.

 

          Mr. Abid Hussain Kazmi, learned advocate for the applicant/accused mainly contended that the applicant/accused has been granted bail by the trial Court in the main case bearing Crime No.121/2014 under sections 353/324/34 PPC. It is also argued that prosecution story is unbelievable. All the PWs are police officials and no independent person of the locality has been associated as witness of the alleged offence. Lastly, it is submitted that applicant/accused is behind bars since last more than three months. In support of his contentions, learned advocate for applicant has placed reliance on the case of Jamaluddin alias Zubair Khan versus the State (2012 SCMR 573) and unreported order passed in Criminal Bail No.1129 of 2013 (Daniyal sonof Laal Khan versus the State).

 

Mr. Abdullah Rajput, learned A.P.G. appearing on behalf of the State argued that all the P.Ws have implicated the accused in the commission of offence, yet case is fresh one and alleged offence falls within the prohibitory clause of Section 497 Cr.P.C. He has opposed the bail application.

 

          I am inclined to grant bail to the applicant/accused for the reasons that bail has already been granted to the applicant/accused by the trial Court in main case bearing Crime No.121/2014 under sections 353/324/34 PPC, while holding that case requires further enquiry. It is observed that all the PWs are police officials, case has already been challaned, the applicant/accused is no more required for investigation. He is behind the bars since last more than three months. There is no apprehension of tampering with the prosecution evidence. In Section 24 of the Sindh Arms Act, 2013, it is provided that punishment of un-licensed arm may extend to ten years with fine. Needless to say that the Court while hearing a bail application not to keep in view the maximum sentence provided by the Statute but the one which is likely to be entailed in the facts and circumstances of the case. Rightly reliance has been placed upon the case of Jamaluddin alias Zubair Khan (supra). Relevant portion is reproduced as under:

“4. ……………. Needless to say that the Court while hearing, a petition for bail is not to keep in view the maximum sentence provided by the Statute but the one which is likely to be entailed in the facts and circumstances of the case. The fact that petitioner has been in jail for three months yet commencement of his trial let alone its conclusion is not in sight, would also tilt the scales of justice in favour of bail rather than jail.

5.       The argument that the petitioner has been involved in two other cases of similar nature would not come in the way of grant of petition so along as there is nothing on the record to show that he has been convicted in any one of them. We, therefore, convert this petition into appeal and allow it. The appellant shall be released on bail subject to furnishing bail bonds in the sum of Rs.200,000 (Rupees two lacs)  with  two  sureties  in  the  like  amount  to  the  satisfaction  of the trial Court.”

          The fact that the applicant has been in jail since 11.05.2014, yet commencement of his trial let alone its conclusion is not in sight, would also tilt the scales of justice in favour of bail rather than jail. In the instant case, 30-bore unlicensed pistol is alleged to have been recovered from possession of accused. It has been argued that police has foisted the same upon the accused due to enmity. Therefore, keeping in view facts and circumstances of the case, prima facie, case against applicant/accused requires further inquiry as contemplated under subsection (2) of section 497 Cr.P.C. Applicant/accused Farooq Bashir son of Bashirullah is admitted to bail subject to his furnishing solvent surety in the sum of Rs.50,000/- (Fifty Thousands Rupees), and P.R bond in the like amount to the satisfaction of trial Court. 

 

          Needless, to mention here that the observations made hereinabove are tentative in nature and would not influence trial Court while deciding the case of the applicant/accused on merits.

 

                                                                                      JUDGE

 

Gulsher/PA