2014 PLP 1573 (YLR)

HASAN FEROZ, J.

This order will dispose of bail application of applicant/accused Anwar Khan son of Aslam Khan, moved under section 497 Cr.P.C, F.I.R. No.118/2013, under section 23-1(A) of Sindh Arms Act, lodged at Police Station Iqbal Market, who was granted bail on 25-11-2013 by a short order.

2. Brief facts of the prosecution case are that on 2-8-2013 SIP Muhammad Fayyaz Qureshi, Incharge P.P. Toori Bangash of Police Station Iqbal Market with reference to F.I.R. No.117/2013 under section 324/353/34 P.P.C., arrested applicant/accused and secured one unlicensed pistol of 30 bore loaded with magazine containing three live rounds and one live round loaded in chamber from his possession and registered the F.I.R.

3. Learned counsel for the applicant/ accused has contended that the applicant is innocent and has been falsely implicated in this case by the police with ulterior motive and mala fide intention. That nothing has been mentioned in challan in respect of FSL report. That the section under which applicant/accused is involved does not come within the prohibitory clause and there is no independent eye-witness of alleged occurrence and witnesses cited are interested witnesses and police officials. No specific role is mentioned in the present F.I.R. That the case of the applicant/accused is fully covered under the 2nd proviso of section 497 Cr.P.C. and becomes a case of further inquiry entitling the applicant/accused for grant of bail. There is also gross violation of section 103, Cr.P.C. That the applicant/accused has been granted bail in main case F.I.R. No.117/2013 under sections 324, 353/34, P.P.C. on the ground of further inquiry and in the same connected matter in F.I.R. No.118/2013 he has been declined bail. Learned counsel has relied on 1995 SCMR 1345 "Benefit of doubt, grant of

For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts

If a simple circumstance creates reasonable doubt in the prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as matter of right". Learned counsel has further contended that Charge sheet (challan) has been submitted. In Column No.5 of the challan the alleged recovered pistol, its magazine and three live rounds have been mentioned but the alleged empties/bullets have not been mentioned in challan which earlier mentioned in instant F.I.R. so also no mark of firing have been noted either on the police mobile or anything else in the surrounding of the place of incident. There is contradiction in the contents of F.I.R., challan, memo of recovery and memo of inspection of the place of incident. It is not mentioned in the challan whether the recovered weapon and empties have been sent to Ballistic Expert. The applicant/accused has never been involved in any offence is neither a previous convict nor is a hardened, desperate or dangerous criminal.

4. Learned counsel for the applicant contended that the F.I.R. has been registered in contravention of section 23 of Sindh Arms Act, 2013 however two statutes are prevailing for the same offence firstly 13-D Arms Ordinance, 1965 which provides lesser punishment of 7 years and the minimum punishment is 3 years which is still intact and the section 23-A(1) Sindh Arms Act, 2013 is newly introduced enactment, and carries 14 years punishment though the law which provides lesser punishment may is to be adopted, therefore, the case of the applicant/accused does not fall within the prohibitory clause of section 497, Cr.P.C. It has further been contended by the learned counsel for the applicant that all the witnesses are police officials except one witness and the recovery memo has not been prepared at the spot, nor the articles were sealed at the spot, hence the proceedings of recovery is in violation of section 103, Cr.P.C. though it is an exception, but the alleged recovery was made by the police and police is also the complainant, therefore the recovery can be seen as suspicious.

5. Learned APG has opposed the bail application.

6. The arguments advanced by learned counsel require consideration inasmuch as that recovery from the accused has been put under doubt since the recovered weapon used in the offence has not been sent for FSL examination therefore, the ingredients to attract section 23-A(1) of Sindh Arms Act, 2013 require proof of recovery which is a matter of further inquiry. Applicant/accused has been granted bail in main case F.I.R. No.117/2013 under sections 324,353/34, P.P.C. on the ground of further inquiry and in the connected matter in F.I.R. No.118/2013 this bail application has been moved.

7. I have in my view the arguments advanced by both the sides as well as F.I.R. and police papers are also in my perusal. I have in my view the citation relied by the learned counsel for the applicant/accused 1995 SCMR 1345.

8. Upshot of the above discussion that in the connected offence accused has been granted bail by the trial Court which also involves the use of arm as stated in this case the recovery is shrouded under doubt whereby the matter falls under the purview of further inquiry. I therefore, ordered for grant of bail to the applicant/accused vide short order dated 25-11-2013 as under:-- "For the reasons to be recorded later on, after hearing of learned counsel for the applicant/accused Anwar Khan son of Aslam Khan in F.I.R. No.118/2013 of Police Station Iqbal Market, Karachi and keeping in view that the accused has already granted bail in connected cases, and there also appears grounds of further enquiry under section 497(2), Cr.P.C. therefore applicant/accused is admitted to bail on his furnishing surety in the sum of Rs.50,000 (Rupees fifty thousand) and P.R. bond in the like amount to the satisfaction of the trial Court." The observations made in this order are of tentative nature and will not affect the course of trial. Above are the reasons for the short order. HBT/A-51/Sindh Bail granted.