1996 P Cr (PLP)

S. Nasir Ali Shah Bukhari for Applicants. A.R. Muhammad Kazi for the State. Date of hearing: 6th May, 1996. The brief facts leading to this application are that A.S.-I. Ghulam Shabbir Sehto of Police Station Naushero Feroz lodged his F.I.R. being Cr. No.136/1995 at Police Station Naushero Feroz on 19-10-1995 at 1-30 p.m. under section 13-D, Arms Ordinance statement therein that on the said day he alongwith his staff was on patrol duty vide Roznamcha Entry No.9, dated 19-10-1995 in a private vehicle when they reached near an abandoned Madersa situated on link road going from Naushero Feroz to Mithiyani they saw a person armed with klashnikov at about 12-00 noon seeing the police party the culprit tried to escape but he was encircled and was caught alongwith the klashnikov and on interrogation he disclosed his name as Akhtar Hussain son of Rehmatullah Channa. The complainant prepared such Mashirnama in presence of, P.C. Muhammad Rafiq Rajpar and it is also the case of the prosecution that on the personal search of the applicant/accused two notes of Rs.100 each were secured from the front pocket of his shirt and a klashnikov with two magazines with 30 bullets were also recovered. As such they brought the present applicant/ accused to the police station as the klashnikov was unlicensed. After usual investigation the accused was challaned and now he is facing trial before the Special Judge S.T.A., Nawabshah. The main contentions of the learned counsel for the appellant/accused are that the applicant/accused is innocent and the klashnikov has been foisted on him. He has further argued that admittedly as stated above in the F.I.R. the applicant/accused was arrested at 12-00 noon but none of the private person was asked to act as Mashir. On the other hand the two police constables who are subordinate to the complainant were made Mashirs as such there is violation of section 103, Cr.P.C. which is a mandatory one. He has further argued that concession of the applicant/accused was recorded on 22-10-1995 by the Mukhtiarkar and F.C.M., Naushero Feroz while the applicant/accused was arrested on 19-10-1995 viz. after three days and no explanation whatsoever has been given as to why the confession was recorded after three days. He has further argued that 161, Cr.P.C. statement of the applicant/accused and the language of the confession is verbatim. He has also pointed out that within three hours the S.H.O. has shown arrest of four different persons from different places and as such, four F.I.Rs. are also lodged being F.I.R. No.136/1995 the present on 134/1995, 133/1995 and 140/1995. According to him it is humanly impossible to detect separate cases from different places of the same nature. He has further pointed out that in Cr. No.134/1995 accused Intizar Hussain Shah was granted bail being Criminal Bail Application No.702 of 1995 by a Division Bench of this Court at Sukkur. The case of the present applicant/accused is identical to that of accused Intizar Hussain Shah. Mr. A.R. Muhammad Kazi learned Advocate for the State has conceded and has no objection to the grant of bail. We have heard the arguments of the learned counsel and with their assistance have also perused-the record. The learned counsel for the applicant has also pointed out a news item published in Daily "Jang", Karachi, dated 1-10-1995 wherein the present applicant/accused has been shown arrested at Mehrabpur by C.I.A., Karachi. The learned counsel has also pointed out a telegram sent by one Mst. Rukhsana wife of the present applicant/accused addressed to the Chief Justice of Sindh High Court, Karachi and copy of the same sent to the Sukkur Bench as well as Special Court Nawab Shah wherein the E endorsement on the acknowledgment receipt of this telegram shows the same was received at Sukkur on 12-10-1995, if, the telegram and the news item appeared in daily "fang" are considered then it creates doubt in the mind as to how when the applicant was already in the custody of C.I.A., Naushero Feroz how the applicant was arrested on 19-10-1995. It has been brought to our notice that charge has not been framed as yet. Looking to the circumstance as argued by the learned counsel for the applicant so also by the State Counsel we are of the view that it is a fit case for further enquiry we accordingly grant bail to the applicant/accused subject to his furnishing a surety in the sum of Rs.1,00,000 (Rupees one lac) and P.R. Bond in the like amount to the satisfaction of the trial Court. N.H.Q./36/K Bail granted.