ORDER SHEET
IN THE HIGH COURT OF SINDH
AT KARACHI
Criminal
Bail Application No.1066 of 2015
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DATE ORDER WITH SIGNATURE(S) OF
JUDGE(S)
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Date of hearing: 10.09.2015
Date
of Announcement: 15.09.2015
Mr. Muhammad Dawood
Narejo, advocate for applicant
Mr. Zafar
Ahmed Khan, Addl: Prosecutor General Sindh
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NAIMATULLAH PHULPOTO, J.--- This bail application has been moved on behalf of the applicant/accused
Abdul Wajid alias Wajid Pathan, arising out of Crime No.309/2015,
registered at P.S. Taimuria, Karachi Central, under
section 23(1)(a) of the Sindh Arms Act, 2013.
Brief facts of the prosecution case as
disclosed in FIR are that on 14.07.2015 complainant SIP Salman Shah of ACLC, Taimuria police station, along
with his subordinate staff was busy in searching proclaimed offenders and vehicles
checking at Peoples Chowrangi, Buffer Zone, Karachi.
At 12:30 a.m. he got stopped one car bearing registration No.ADF-467,
Honda Civic white colour, Model 2001, in which three persons were sitting, out
of them two persons succeeded to run away, while the person who was driving the
car was apprehended by the police, who disclosed his name as Abdul Wajid son of Abdul Ghafoor. He
also disclosed names of co-accused as Inayat Nidwani and Shaman Bhayo. Upon
his personal search one 30 bore pistol bearing No.FF-1803
with loaded magazine containing 4 live bullets was recovered for which he failed
to produce license. Upon his further search Rs.1000/-
and photocopy of his CNIC were also recovered. Accused also failed to produce
ownership documents of vehicle. SIP Salman Shah sealed pistol in presence of
mashirs. Thereafter, accused and case property were brought to police station
where F.I.R. was registered on behalf of State under section
23(1)(a) of the Sindh Arms Act, 2013. After usual
investigation challan was submitted against the accused under the above
referred section.
Bail application was moved on behalf
of applicant/accused before 1st Additional Sessions Judge, Karachi Central,
the same was rejected vide order dated 06.08.2015. Thereafter, applicant has
approached this court.
Learned counsel for applicant/accused
mainly contended that unlicensed pistol has been recovered by police at Peoples
Chowrangi, Buffer Zone, Karachi but no independent
and respectable person of the locality has been cited as mashir of recovery. He
further submitted that all the P.Ws are police officials and there is no question of tampering
with the evidence. He further argued that
pistol has been foisted upon the applicant/accused by the police due to enmity.
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. Learned counsel for the applicant/accused contended that bail has been
granted to applicant/accused in main case by IV Civil Judge and Judicial
Magistrate Karachi Central vide order dated 28.07.2015.. He further argued that
after usual investigation challan has been submitted against the accused and he
is behind the bars since 14.07.2015, there is no progress in the trial. In
support of his contentions he has relied upon the case of Jamaluddin
alias Zubair Khan versus the State (2012
SCMR 573).
Mr. Zafar Ahmed Khan, learned
Additional Prosecutor General Sindh, opposed the bail application mainly on the
ground that unlicensed T.T. pistol has been recovered
from possession of accused and the case falls within the prohibitory clause of
section 497 Cr.P.C. He argued that accused is required in some other cases. 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 further
contended that applicant/accused is involved in a number of cases.
I am inclined to grant bail to the
applicant/accused for the reasons that applicant/accused has been granted bail
in main case by learned IV Civil Judge and Judicial Magistrate Karachi Central vide orders dated 28.07.2015. The applicant is behind the
bar since 14.07.2015, yet charge has not been framed against him. Learned A.P.G. has
mainly opposed the bail on the ground that applicant/accused is involved in other
cases. Merely registration of cases 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
mala fides 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 Abdul Wajid
alias Wajid Pathan son of
Abdul Ghafoor 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.
J
U D G E
Gulsher/PA