2017 PLP 66 (YLRN)

MUHAMMAD SALEEM JESSAR, J.

Through instant post arrest bail application, the applicant/ accused Muhammad Usman son of Muhammad Anees claims his release on bail in Crime No.98/2016 registered in PS Korangi Town, Karachi, in offence punishable to Section 23(1)(A), Sindh Arms Act 2013. Initially, the applicant has preferred such bail plea before learned trial Court, but same was declined vide Order dated 24.6.2016 passed by learned Additional Sessions Judge-VII, Karachi (West). The crux of prosecution case is that the police party headed by ASI Syed Akhtar of PS Korangi, Karachi, was on patrolling and during patrolling, they had found two suspicious persons and subsequently on their personal search both were found in possession of pistols of 9mm and .30 bore with certain live rounds, such joint memo of recovery and their arrest was prepared by the police and later two separate FIRs bearing Crime Nos.97/ 2016 and 98/2016 were registered at PS Orangi Town on behalf of the State. After usual investigation and completion of legal formalities, the Police have submitted the challan before the competent court of law having jurisdiction on 22.6.2016. The contents of FIR reflects that the 9mm pistol with two live rounds was recovered from the possession of present applicant, while .30 bore pistol along with two live rounds was alleged to have been recovered from the possession of co-accused. Learned counsel for applicant submits that the applicant has been falsely implicated in this case and the weapon as has been shown to have been recovered from his possession, in fact, was not recovered from his possession nor the same was produced by the applicant and therefore, he submits that the police party in order to show their efficiency and get shield from their superiors have foisted weapon upon the applicant. He further submitted, although, the place of incident is a populated area but none from the public was associated as witnesses to the recovery proceedings. He further submits that mere saying by the police that the weapon was recovered from the possession of the applicant has no force as, according to him, no doubt the police persons are good witnesses as good from the public, but before proceeding towards search, it was their prime duty to associate independent persons from the locality. He further submits that, according to his instructions, the applicant is not previously convicted or hardens, dangerous criminal and since the case has been challaned by the police, therefore, he is no more required by the police for the purpose of investigation and finally in support of his above contention, he has relied upon the case of Rajab v. State reported as 2014 YLR 1769 (Sindh), 2016 YLR 32 (Sindh), 2014 PCr.LJ 1430 (Sindh), PLD 2014 Sindh 282 and 2015 PCr.LJ

747. On the other hand, Ms. Seema Zaidi, learned APG appearing for the state has opposed the bail application on the ground that recovery was effected but on the query that why the joint Mushirnama was prepared and what is legal status of the joint Mushirnama in the eye of law, she has no answer. Heard arguments. Perused the record minutely. I have heard the counsel appearing for the either side, perused the material made available before me and has gone through the citations placed at the bar. Although, applicability of Section 103, Cr.P.C. is ousted as is embodied under Section 34, Sindh Arms Act, 2013, and the police witnesses are good witnesses as good from the public but when the police officer was going to charge a person for an offence which carries punishment in shape of detention then it was incumbent upon the police officer to associate independent persons for witnessing the recovery proceedings. Further, although, there are separate FIRs for alleged recovery of two weapons from alleged possession of two accused, but there was joint Mushirnama in respect of the arrest and recovery of both accused which was also illegal and has no legal effect in the eye of law. It is settled principle of law that every accused would be presumed to be blue eyed boy of the law and he may not be termed as criminal unless found guilty of alleged charge by the competent court of law after safe trial and law cannot be stretched upon in favour of the prosecution, particularly at bail stage. Therefore, the submissions made herein above by the defence and guidelines from the citations relied upon, the applicant has successfully made out a good prima facie case for his release on bail. I am, therefore, of the humble view that case against applicant requires further enquiry as required by subsection (2) to Section 497, Cr.P.C. Consequently, instant application is allowed. It may be noted that the observations made herein above are tentative in nature and would not influence the trial court while deciding the case on merits. These are the reasons for my short Order announced in open Court on 25.7.2016, whereby the applicant was granted bail against the solvent surety in the sum of Rs.100,000 and PR Bond in the like amount to the satisfaction of Nazir of this Court. JK/M-138/Sindh Application allowed.