ORDER SHEET
IN THE HIGH
COURT OF SINDH, KARACHI
Criminal Bail Application No.970
of 2015
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DATE ORDER
WITH SIGNATURE(s) OF THE JUDGE(s)
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1)
For orders
on M.A. No.5735/2015
2)
For orders
on M.A. No.5408/2015
3)
For hearing
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19.08.2015
Mr. Muhammad
Ali Waris Lari, advocate
for applicant
Mr. Abrar Ali Khichi, A.P.G.
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NAIMATULLAH
PHULPOTO, J.--- This
is an application for grant of post arrest bail in a case registered against
applicant/accused Habib alias Ghaffar Baba on
27.06.2015 being Crime No.215/2015, registered at
P.S. Shahrah-e-Noor Jahan,
Karachi, under sections 23(1)(a) of the Sindh Arms Act, 2013.
Brief facts of the prosecution case
as disclosed in the F.I.R. are that on 27.06.2015 SIP
Ayoub Siyal lodged his
report on behalf of the State, alleging therein that applicant/accused was
arrested by police in Crime No.213/2015 under sections
353, 324, 34 PPC and from his possession one 30 bore
pistol, having three rounds in its magazine, recovered for which he had no
license. Mashirnama was prepared thereafter applicant/accused along with case
property was brought to the police station where F.I.R.
was lodged against the applicant/accused under the above referred sections.
Weapon was sent to FSL and positive report was
received. After usual investigation, challan has been submitted against the
applicant/accused before the competent Court of law.
Bail application was moved on behalf
of the applicant/accused before V Additional Sessions Judge Karachi Central, the
same was rejected vide order dated 15.07.2015. Thereafter the applicant/accused
approached this Court for the similar relief.
Mr. Muhammad Ali Waris
Lari, learned advocate for applicant/accused mainly
contended that accused was arrested from Mochi Gali, North Nazimabad, Karachi,
despite that no independent and respectable person of the locality has been
cited as mashir. He has further contended that it is not mentioned in the
mashirnama of arrest and recovery that in which country the alleged pistol was
manufactured and pistol is without number. He has submitted that challan has
been submitted; applicant/accused is in custody since 27.06.2015; there is no
progress in the trial. He has also argued that applicant/accused has been
granted bail in the main case by learned Incharge/IV
Assistant Sessions Judge Karachi Central vide order dated 15.07.2015. He lastly
contended that maximum punishment provided in the Statute for the alleged
offence may not be awarded to the applicant/accused in the circumstances of the
case. In support of his contentions he relied on the case of Jamaluddin alias Zubair
Khan versus The State (2012 SCMR 573) and Ibraheem versus the State (2014 YLR
2398 (Sindh).
Mr. Abrar
Ali Khichi,
learned Assistant Prosecutor General Sindh, argued applicant/accused was
carrying T.T. pistol without license and alleged
offence falls within the prohibitory clause of section 497 Cr.PC. He opposed
the bail application.
I am inclined to grant bail to the
applicant/accused for the reasons that investigation is complete; accused is no
more required for investigation; all the mashirs are police officials; there is
no question of tempering with the evidence; accused is in custody since 27.06.2015.
Alleged pistol was without number or company. It is contended that pistol has
been foisted upon accused by police due to enmity. Liberty of a person cannot
be curtailed without legal justification. No efforts were made to call independent
persons of locality. No other case of like nature is pending against accused. There
is no progress in the trial. Needless to say that the Court while hearing 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. In
the case of Jamaluddin alias Zubair
Khan (supra), the Honourable Supreme Court has observed as under:-
“Without
entering into the merits of the case, as the quantum of sentence has to be
commensurate with the quantum of substance recovered, we doubt the petitioner
can be awarded maximum sentence provided by the Statute. Needless to say that
the Court while hearing 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.”
While relying upon the above cited
authority of Honourable Supreme Court and looking into the circumstances of the
case, as applicant/accused has been granted bail in the main case registered under
sections 353, 324, 34 PPC by the learned Incharge/IV Assistant Sessions Judge, Karachi Central vide
order dated 15.07.2015. Prima facie, case against the applicant/accused
requires further enquiry as contemplated under section 497(2) Cr.PC, concession
of bail is extended to the applicant/accused subject to his furnishing solvent
surety in the sum of Rs.100,000/-
(Rupees One lac only) and P.R bond in the like amount
to the satisfaction of the trial Court.
Needless to mention that the above
observations are tentative in nature and the trial Court shall not be
influenced by the same at the time of deciding the case of the
applicant/accused on merits.
J U D G E
Gulsher/PA