ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Cr. Bail Application No.659 of 2014

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

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          For hearing

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14.03.2014

 

            Mr. Hashmat Khalid, Advocate for Applicant

            Mr. Muhammad Iqbal Awan, A.P.G.

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NAIMATULLAH PHULPOTO, J.-This bail application has been moved on behalf of the applicant/accused Sharif Khan alias Sharifa son of Muhammad Khan, arising out of Crime No.53 of 2014, registered at P.S. Awami Colony, Karachi on 13.02.2014, 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.52/2014 under sections 353/324/186/34 PPC and from his possession one 30 bore pistol, Pakistan made, with loaded magazine containing five live rounds, 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 08.04.2014.

 

          Mr. Hashmat Khalid, 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.52/2014 under sections 353/324//186/34 PPC. It is further contended that 30 bore pistol with five live rounds have allegedly been recovered from the accused but it was not sent to the Ballistic Expert for report. PWs are police officials, there is no question of tampering with the evidence. It is also argued that pistol has been foisted upon the accused by the police with ulterior motive. Lastly, it is submitted that applicant/accused is behind bars for about 7 months. In support of his contentions, learned advocate for the 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.582 of 2014 (Samarqand versus The State).

 

Mr. Muhammad Iqbal Awan, APG appearing on behalf of the State argued that all the P.Ws have implicated the accused in the commission of offence 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.52/2014 under sections 353/324/186/34 PPC. A country made pistol was allegedly recovered from the possession of the accused but the same was not sent to the Ballistic Expert for report. It is further 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 for about 7 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). The fact that the applicant has been in jail since 13.02.2014, 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 with ulterior motives. 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 Rehmat Shah son of Saeed Badshah 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.

 

                                                                                      JUDGE

 

Gulsher/PA