ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

Cr. Bail Appln: No.S-293 of 2015.

DATE ORDER WITH SIGNATURE OF JUDGE

04.05.2015.

Mr. Azizullah Jamali, Advocate for applicant.

Mr. Mushtaque Ahmed Abbasi, DDPP a/w SIP Shafi Bangash on behalf of SSP, Hyderabad.

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MUHAMMAD IQBAL KALHORO,J- The applicant has prayed for post arrest bail in crime No. 14 of 2015 for the offence punishable under section 23-A(i) of Sindh Arms Act, 2013 registered at P.S. Hatri, Hyderabad.

2. The facts in brief are that complainant Ghulam Raza Marri who is posted as SIP, CIA, Hyderabad was on patrolling duty along with his subordinate staff during which he received a spy information regarding the presence of the applicant along with some weapon at New Hyderabad City Chowk, Hyderabad. Pursuant to such information, he arrived at the place of incident and arrested the present applicant and from him one T.T. pistol of 30 bore along with magazine having two live bullets was recovered and such mashirnama of arrest and recovery was prepared. Accused was brought at Police Station, Hatri where present F.I.R. was registered on 28.01.2015 at about 1630 hours.

3. Mr. Azizullah Jamali, learned counsel for the applicant has argued that the applicant has not committed the instance offence but has been falsely implicated by the prosecution. In order to show malafide of the police, he has placed on record copy of daily diary/entry No.16 at about 1630 hours kept at police station Hatri mentioning the arrest of the accused and recovery from him and has emphasized that the said daily diary shows that the applicant was arrested on 10.01.2015 which is contrary to the present F.I.R, where the applicant is alleged to have been arrested on 28.01.2015. He has next contended that although the applicant was arrested during day time, yet no efforts appear to have been made by the police to procure the attendance of private witnesses in terms of section 103, Cr.P.C. He has next contended that applicant has no previous criminal history and since challan has been submitted before the competent Court of law, he is no more required for further investigation. He has lastly prayed for release of the accused on bail.

4. On the contrary, learned DDPP appearing on behalf of the State has opposed the grant of bail to the applicant by contending that name of the applicant appears in the F.I.R. and from him one TT pistol of 30 bore was recovered, however, he is not able to controvert and explain the daily diary No.16 at 1630 hours which shows the date of arrest of the applicant to be 10.01.2015.

5. I have heard both the learned counsel and perused the material available on record.

6. The applicant is shown to have been arrested on 10.01.2015 and from him one TT pistol of 30 bore along with two live bullets is alleged to have been recovered, pursuant to which he was arrested and instant F.I.R. was registered against him. Copy of daily diary No.16 of P.S. Hatri placed on record by the defence counsel which is also available in the police papers depicts that applicant was arrested on 10.01.2015 after recovery of alleged pistol and not on 28.1.2015 as alleged by the prosecution in the instant F.I.R. In addition to above, the record does not reflect that any effort was made by the police party to procure the attendance of private witnesses to witness the recovery proceeding despite the fact the spy information was communicated to the complainant in advance. Admittedly, charge sheet in terms of section 173, Cr.P.C. has already been submitted before the trial Court against the applicant and he is no more required for further investigation. The incarceration of the applicant in jail is of no benefit to the prosecution as prosecution case is mainly dependent upon the evidence of police officials whose evidence cannot be tampered with. I leave the aspect of the daily diary No.16 of P.S.Hatri placed on record by the learned counsel for the applicant to be examined by the learned trial Court while holding the trial. With these observations, I am of the view that applicant has been able to make out a case for bail on the ground of further inquiry. Accordingly, he is admitted to bail subject to his furnishing a solvent surety in the sum of Rs. 100,000/-(Rupees one hundred thousand) and PR bond in the like amount, to the satisfaction of the trial Court.

JUDGE.