2014 P Cr (PLP)

ABDUL MAALIK GADDI, J.

Applicant/accused seeks post arrest bail in Crime No.130 of 2013 under section 23(i)(a) of Sindh Arms Act, 2013 of Police Station New Faujdari Shikarpur registered on 28-6-2013. Brief facts of the case are that on 28-6-2013 at 2200 hours the complainant SHO Noor Muhammad Jakhro of Police Station New Faujdari Shikarpur along with his subordinate Staff namely PC Gul Meer, PC Abdul Ghani, PC Gulab and PC Muhammad Usman left Police Station under Entry No.42-2100/28-6-2013 for patrolling in the area and during patrolling they received spy information that one person on motorcycle having gun is coming from Zarkhel link road near Malang Shah Baba. On receipt of such information they immediately proceeded towards pointed place, when at about 2200 hours in the night they reached there where they saw on headlight of the vehicle one person coming on motorcycle at Zarkhel road near Malang. Shah Baba. Complainant party got down from the vehicle and during interrogation he disclosed his name as Raheem Bux and recovered one SBBL gun and 10 live cartridges of .12 bore from his possesion. Such mashirnama was prepared at the spot in presence of the mashirs/constables. After usual investigation, challan was submitted against accused under the above referred sections. Bail application was moved on behalf of applicant/accused, the same was rejected by the learned Sessions Judge, Shikarpur by his order dated 23-7-2013. Heard learned counsel for the applicant/accused and learned counsel for the State as well as perused the record. The counsel for the applicant contends that the scene of the offence was located at busy spot yet none from the public was joined to attest recovery. The SBBL gun was neither sealed at the spot nor certified by ballistic expert to be in working order. The applicant has got enmity with the complainant party and the case is registered against him malafidely and case requires further inquiry entitling the applicant/accused to be released on bail. In support of his arguments, learned counsel for the applicant/accused has relied upon unreported judgments in Criminal Bail Application No.S-292 of 2013, Criminal Bail Application No. S-309 of 2013 and Criminal Bail Application No.S-247 of 2013. Learned State Counsel has opposed the bail plea stating the offence carries punishment upto 14 years thus the case of applicant attracts embargo contained in section 497, Cr.P.C. He has further submitted that the recovery has been effected in presence of two police officials and there evidence is as good as of private witnesses. He further submits that no mala fide is alleged against them hence their evidence can not be discarded merely being police personnel. I have given my anxious thought to the contentions raised at the bar and have gone through the police papers as well as case law cited by the learned counsel for the applicant. After hearing the parties' advocate, I am inclined to grant bail to the applicant/accused for the reasons that all the prosecution witnesses are police officials. Case has been challaned. Applicant is no more required for investigation. There is no apprehension of tampering with the prosecution evidence. The SBBL gun allegedly recovered from the possession of the accused was not sealed at the spot therefore, it is not certain whether the gun allegedly recovered from him sent to ballistic expert was the same or otherwise. I may also mention here that admittedly in this matter police party had advance information and the accused was apprehended from the public place yet in this matter no independent witness has been cited. No effort has been made to associate any private person to act as mashir of recover and arrest of accused. On this count also the case requires further probe. There is nothing on record that the present applicant/accused is previous convict or he has been arrested in the same nature of case in the past. In these circumstances, I have come to this conclusion that the applicant/accused has made out a case for grant of bail. Accordingly, I admit him on bail after his furnishing solvent surety in the sum of Rs.50,000 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 the trial court while deciding the case. MWA/R-21/K Bail granted.