2017 P Cr (PLP)

MUHAMMAD SALEEM JESSAR, J.

By means of instant application under section 497, Cr.P.C., the applicant/accused, namely, Dost Muhammad alias Dosoo Sahito seeks his release on post arrest bail, in crime No.38/2016 registered at PS Hussainabad, Hyderabad for the offences under section 23(i)(a), Sindh Arms Act, 2013.

2. The crux of the prosecution case as enumerated in FIR No.38/2016 registered with PS Hussainabad, Hyderabad for the offence under section 23(i)(a), Sindh Arms Act, 2013, is that the present applicant who allegedly was shown to have been arrested in an injured condition by the police in main crime No.37/2016 for the offence punishable to sections 324, 353, 34, P.P.C. and was found in possession of an un-licensed pistol of .30-bore along with one live bullet, therefore, present FIR was registered against him for allegedly keeping un-licensed pistol in his possession.

3. The police after registration of the case and completion of legal formalities submitted the challan before the Court of law having jurisdiction on 05.05.2016. The bail plea on his behalf was preferred before the learned Sessions Judge, who subsequently assigned the same to learned 3rd Additional Sessions Judge, Hyderabad where his request for bail was declined vide order dated 04.05.2016.

4. Learned counsel for the applicant/accused submitted that this is the offshoot of main crime No.37/2016 and the alleged weapon was not secured from his possession rather was foisted upon him as he was arrested two days earlier from the registration of the present case by the complainant of this case who made demand of huge amount for his release but the applicant being poor could not grease palms of complainant, therefore, who by taking somersault and by misusing his authority has fired on his right leg below the knee and in order to cover up his illegal act has foisted alleged weapon by showing police encounter. The instant FIR being false one is the outcome of annoyance of the police officer. He further submitted that in order to water his anger and annoyance, the police officer, by making firearm injury upon the leg of accused, below the knee, crippled him. He further argued that a sound, young and healthy person was made as layman. He, therefore, submitted that he be released on bail. In support of his contention, he has placed reliance upon the case law as 2014 MLD 1123, 2014 YLR 2398, 2014 YLR 1573 and finally submitted that applicant may be bailed out as he has been bailed out in main crime case vis-a-viz the Criminal Bail Application No.S-385 of 2016.

5. On the other hand, learned D.D.P.P. appearing for the State has vehemently opposed the bail application on the ground that the accused was arrested along with un-licensed pistol and a motorcycle and while firing upon the police party, was arrested in an injured condition, therefore, no case for bail is made out.

6. Heard arguments of both sides, perused record minutely and gone through the citations advanced (supra).

7. It is manifest from record, a joint mashirnama was prepared in respect of all recoveries and arrest of both accused in two cases. Besides, the complainant himself has acted Investigating Officer of the case. Therefore, mala fide on his part is visible. The applicant has been granted bail in main case by this Court and deserves to be released on bail as his case requires further probe.

8. Since, instant case is outcome of main crime viz. FIR No.37/2016 under sections 324, 353, 34, P.P.C. of PS Hussainabad, Hyderabad and per the averments of the main case only the accused had sustained firearm injury on their person while the police party had not sustained even scratch of single bullet on their person or the property. The alleged recovery of pistol, as alleged, is yet to be proved by the prosecution at the time of trial. The applicant is no more required to be kept in custody for purpose of investigation or interrogation. In the circumstances, I am fortified with view taken by this Court in case of 'Muhammad Nabi v. The State' reported as 2014 MLD 1783 and find that the case of applicant falls within the parameters of section 497(2), Cr.P.C. and requires further inquiry. Consequently, the application is allowed.

9. The applicant was granted bail on furnishing solvent surety in the sum of Rs.1,00,000/- (Rupees one hundred thousand) and PR bond in the like amount, to the satisfaction of learned trial Court by my short order dated 02.09.2016 and these are the reasons for same.

10. However, the observations made hereinabove are tentative in nature and may not influence learned trial Court while deciding the case on merits. JK/D-18/Sindh Bail granted.