2018 PLP 132 (YLRN)

KHADIM HUSSAIN M.SHAIKH, J.

Through this application, applicant Nazeer Hussain has sought his release on bail in case culminated from FIR No.280/2016 for an offence under section 23(i)(a) of Sindh Arms Act, 2013 of Police Station Itehad Town Karachi, after his bail plea has been rejected by the learned Additional Sessions Judge-VII Karachi West by dismissing his bail application bearing No.1591 of 2016 vide order dated 08.09.2016.

2. The learned advocate for the applicant has mainly contended that the applicant is innocent and he has been falsely implicated in this case; that no private person was made as mashir in the recovery proceedings; that the alleged weapon namely 30-bore pistol and live bullets were foisted upon the applicant by the police; that the investigation of the case has been completed and the case is now pending trial; that applicant is in custody since the date of FIR i.e. 26.08.2016; and that the applicant is not a previous convict, having clean record and antecedents. He, therefore, prays that the applicant may be granted bail.

3. Learned Additional Prosecutor General, Sindh has opposed the grant of bail. However, she has not been able to controvert the contentions raised by the learned counsel for the applicant.

4. I have heard the learned counsel for the applicant as well as learned Additional Prosecutor General Sindh for the state and have also seen the available record with the assistance of learned A.P.G.

5. Admittedly no independent person was cited as mashir in the alleged recovery proceedings; the investigation of the subject FIR stood completed and the case, having been challaned, is pending trial and thus the person of the applicant is no more required for the purpose of investigation; the applicant is in custody since last more than two months; the offence involving recovery of unlicensed weapon namely 30-bore pistol carries maximum sentence upto 10 years. The Honourable Supreme Court of Pakistan in case of Jamal-ud-Din alias Zubair Khan v. The State reported as 2012 SCMR 573 while granting bail to the petitioner has held that:- "4. without entering into the merits of the case, as the quantum of sentence has to be commensurate with the quantum of substance recovered, we doubt the petitioner can be awarded maximum sentence provided by the Statute. Needless to say that the Court while hearing, a petition for bail is not to keep in view the maximum sentence provided by the Statute but the one which is likely to be entailed in the facts and circumstances of the case. The fact that petitioner has been in jail for three months yet commencement of his trial let alone its conclusion is not in sight, would also tilt the scales of justice in favour of bail rather than jail.

6. In case of Ayaz Ali v. The State reported as PLD 2014 Sindh 282, this court while granting bail to the applicant from whose possession 30-bore unlicensed pistol was allegedly recovered, has observed:- "

9. The joint reading of section 23(1)(a) and section 24 of the Act would show that the subsection (1)(a) of section 23 of the Act deals with situation where one acquires, possession carries or control any firearm or ammunition in contravention of section 3 (i.e. 'license, for acquisition and possession of fire-arms and ammunition) while the section 24 of the Act punishment for possessing arms or ammunition licensed or unlicensed with the aim to use them for any unlawful purpose. It is germane to append there that plain reading of sections 23 and 24, elucidate that section 23(1)(a) provides maximum punishment upto 14 years, whereas section 24 provides upto ten years, thus, apparently instant case, wherein recovery is pistol, which falls within the definition of "arms" as provided in the section 2, which carries maximum sentence ten years as provided in section 24 of the Sindh Arms Act, 2013.

10. As the quantum of punishment has to be determined by the trial Court. In such like cases whether accused would be liable to the maximum punishment provided for the offence and also as to whether the punishment in case of proof of the guilt after trial in the circumstances would fall under the prohibitory clause are the questions requiring further probe, as the maximum punishment provided under section 24 of the S.A.A., 2013, is ten years, discretion is left upon the trial Court by the Legislature to decide the fate of the case according to the circumstances of the case commensuration with the nature of case. The record is also silent as to whether the applicant is a habitual or previous convict, hence all these facts makes the case against him as that of further inquiry."

7. In view of what has been discussed above, I am of the considered view that the applicant has made out his case for grant of bail. Accordingly, the bail application is allowed and the applicant is ordered to be released on bail subject to his furnishing solvent surety in the sum of Rs.100,000/- and P.R. bond in the like amount to the satisfaction of the learned trial Court.

8. The observations made herein above in this order are tentative in nature, which shall not influence the trial Court, while deciding the case. WA/N-22/Sindh Bail granted.