ORDER SHEET
IN THE HIGH COURT OF SINDH
AT KARACHI
Cr.
Bail Application No.1179 of 2014
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DATE ORDER WITH SIGNATURE(S) OF
JUDGE(S)
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1.
For orders on M.A. No.6203/2014 (Ex/A)
2.
For hearing
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22.08.2014
Mr.Pir Darwesh and Mr.Habib Ahmed, Advocates
for Applicant
Mr. Abrar
Ali Khichi, A.P.G. for the
State.
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NAIMATULLAH PHULPOTO, J.-This is an applicationfor grant of bail in a case
registered against the applicant/accused on 19.05.2014 being Crime No.196 of 2014 under section 23(1)(a) of the Sindh Arms
Act, 2013, at police station Jackson, Karachi.
Brief facts of the case, as disclosed
in the F.I.R., are that on 19.5.2014 A.S.I. Jamshed Mahmood left police station alongwith his subordinate staff
and reached near Railway Parking Area, where present accused was arrested and
from his possession recovered a 30 bore pistol No.5613
containing 2 rounds was recovered for which the applicant / accused could not
produce license. Mashirnama was prepared
and thereafter the applicant /accused alongwith case property was brought to
the police station where F.I.R. was registered against him under the
above-referred section. Weapon was sent
to the FSL and positive reported has been received,
thereafter challan was submitted in the competent court of law.
Bail application was moved on behalf
of the applicant/accused before the Ist Additional
Sessions Judge, Karachi West, the same was rejected vide order dated 24.06.2014,
thereafter the applicant has approached this court.
Learned counsel for the applicant /
accused has mainly contended that alleged recovery has been made from the
Railway Parking Area
despite that no independent and respectable person of the
locality has been cited as mashir. He
has further contended that it is not mentioned that in which country the
alleged pistol was manufactured. He has
submitted that after usual investigation challan has been submitted against the
accused and he is behind the bar for the 3 months while charge has not yet been
framed. He further submitted that all
the P.Ws are police
officials and there is no question of tampering with the evidence. He submitted that pistol has been foisted
upon the applicant/accused by the police. He 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 upon the case of Jamaluddin
alias Zubair Khan versus the State (2012 SCMR 573).
Mr.Abrar Ali Khichi, learned APG appearing on behalf
of the State, opposed the bail application mainly on the ground that the
present applicant was arrested in the instant crime and a T.T. pistol has been
recovered from him and the case falls within the prohibitory clause of section
497 Cr.P.C. All the P.Ws have
implicated the accused in the commission of offence, the case is a fresh one
and alleged offence falls within the prohibitory clause of Section 497 Cr.P.C. He has pointed out that another case under
section 379 PPC has been registered against the
applicant/accused.
I am inclined to grant bail to the
applicant/accused for the reasons that the applicant was arrested from the
Railway Parking Area but no independent and respectable person of the locality
has been cited as mashir in this case.
The “made in” has not been mentioned in the F.I.R.
The applicant is behind the bar for the last 3 months, yet charge has not been
framed against him. Learned A.P.G. has mainly opposed the bail on the ground that
another case under section 379 PPC has been
registered against the applicant.
Merely registration of the case would not disentitle the accused from
the concession of bail. Looking to the
peculiar circumstances of the case, maximum sentence as provided in the Statute
may not be awarded to the applicant/accused. Rightly reliance has been placed
on the above-cited case. All P.Ws are police officials and there is no question of
tampering with the evidence. Serious malafide has also been alleged against the police
officials, therefore, there are reasonable grounds to believe that apparently
the alleged offence has not been committed by the applicant/accused and the case against him requires
further enquiry as contemplated under subsection (2) of Section 497
Cr.P.C. 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. The applicant/accused Mohammad Nazim is admitted to bail subject to his furnishing solvent
surety in the sum of Rs.60,000/-
(Sixty 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