1996 P Cr (PLP)

ABDUL MAJID KHANZADA, J.

The brief facts leading to this bail application are that S.H.O./Inspector Abdul Jabbar Bijarani lodged report on behalf of the State which was incorporated as F.I.R. No.19 of 1995 wherein he stated that the present applicant/accused was arrested in Crime No.17 of 1995 under sections 324, 336 as amended, 148, 149, 144, P.P.C. read with section 13-D, Arms Ordinance at Police Station, Garhi Yasin. The applicant/accused was brought out from the lock-up in presence of the Mashirs Dhani Bux and Muhammad Siddique and was interrogated whereupon he agreed to produce the crime weapon used in the Crime No.17 of 1995 and took the police party and Mashirs to the Ara Machine of one Bhaledino and picked out one klashnikov with one magazine and one gun after digging ditch and also disclosed that these are the same weapons which were concealed by him and his brother deceased Abdul Rehman and the same were without licences, as such a case was registered under section 13(e), Arms Ordinance. The learned counsel for the applicant/accused states that there are counter-cases between the parties and such F.I.Rs are registered at the police station being F.I.R. No.17 and F.I.R. No.8 of 1995 and that brother of the applicant/accused died due to the firing by the other side so also one Anwar who is related to the applicant/accused also received the injuries and from the other side only Zubair Ahmed received the injuries. He has further argued that the klashnikov and gun have been foisted. That the place shown from where klashnikov and gun have been recovered belongs to one Bhaledino Marfani and in no way it is in the exclusive possession of the applicant/accused. The Ara Machine is accessible to everybody. He has further argued that the applicant/accused has been granted bail in the main case by this Court on 21-6-1995 and this is an offshoot of the main case. He has also argued that the other side has already been granted bail by the learned Sessions Judge, Shikarpur. He has also argued that the offence is neither punishable with death, life or more than 10 years as such it does not fall within the prohibitory clause of section 497(1), Cr.P.C. He has relied upon 1995 PCr.LJ 1346 and 1992 MLD 2880. He has lastly argued that the applicant/accused is behind the bars for more than 7 months. He has also pointed out that the recovery shown by the police is after 24 hours and during this period the applicant/accused was in the same police custody. Learned Additional Advocate-General has opposed the bail application according to him there are counter-cases and klashnikov and gun have been recovered on the pointation of applicant/accused. We have heard the arguments and have also perused the record. Admittedly the accused was arrested in F.I.R. No.17 of 1995 on 17-2-1995 while this case was registered on 18-2-1995 at 4-30 p.m. which shows that the applicant/accused was with the police for about 24 hours. Admittedly there are counter-cases between the parties and this being an offshoot of the main case in which the present applicant/accused alongwith the other accused have been granted bail by this Court on 21-6-1995 while the accused in Crime No.18 of 1995 lodged by the applicant/accused have already been granted bail by the learned Sessions Judge, Shikarpur. The case has not proceeded as yet. Admittedly the Ara Machine from where klashnikov and gun is recovered is not the property of the applicant but it belongs to Bhaledino Marfani. Admittedly the applicant/accused was with the police for about 24 hours and then alone this recovery has been shown. Perusal of the Mashirnama of recovery shows that the Mashirs belong to far away places which shows that the Investigating Officer has not cared to follow the guideline given in section 103, Cr.P.C. which reads as under:-- "Before making a search, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situated to attend and witness the Here as stated above, the applicant/accused was in custody with the police for about 24 hours and according to the prosecution, he volunteered to produce the weapon, it means that the Investigating Officer was aware of the place where the arms were concealed by the applicant/accused, as such he should E have asked two respectable inhabitants of the locality to act as Mashir but here the Mashirs belong to far away places. Under these circumstances, we grant bail to the accused/applicant in the sum of Rs.one lac and P.R. bond in the like amount to the satisfaction of the trial Court. N.H.Q./A-1589/K Bail granted.