2022 P Cr (PLP)

MUHAMMAD SALEEM JESSAR, J.

Through this bail application applicant Sadaqat Ali seeks his post arrest bail in Crime No.97 of 2020 of Police Station Naudero registered for an offence under section 24 of Sindh Arms Act, 2013 (The Act).

2. Case against the applicant has been challaned by the police on 28.10.2020 which is now pending for preliminary proceedings along with main case arisen out of Crime No.90 of 2020 of Police Station Naudero under sections 302, 114, 148, 149 and 337-H(2), P.P.C. before learned Judicial Magistrate-1, Ratodero in terms of dicta laid down in the case of Muhammad Ramzan v. Rahib and others (PLD 2010 SC 585).

3. It is case of prosecution that police party headed by SIP Niaz Hussain Kolachi of Police Station Naudero recovered crime weapon viz. pistol on the pointation of applicant/accused Sadaoat which was allegedly concealed by him in a room constructed at Fish Farm after commission of offence in main case bearing Crime No.90 of 2020 registered for offence under sections 302, 114, 148, 149 and 337-H(2), P.P.C., therefore, for keeping unlicensed pistol and two live bullets the accused was booked under Crime No.97 of 2020 of Police Station Naudero under section 24 of Sindh Arms Act, 2013.

4. Learned counsel submits that the alleged recovery of crime weapon was not effected from exclusive possession of the applicant and the room from which the alleged recovery was effected was constructed at the site of Fish Farm which was in access of general public; that both mashirs of recovery are police personnel and no serious effort was made to associate private person to act as mashir to attest the alleged recovery of crime weapon hence there is violation of section 103, Cr.P.C. and that the instant case is offshoot of main case viz. Crime No.90 of 2020 of Police Station Naudero under sections 302, 114, 148, 149 and 337-H(2), P.P.C. in which he has been granted post arrest bail by the Court of Additional Sessions Judge, Ratodero vide Cr. Bail Application No.1202 of 2020 in terms of order dated 23.10.2020. He next submits that instant case is offshoot of said main case, therefore, propriety of law demands that he may also be granted post arrest bail in instant case. As far as severity of offence is concerned, learned counsel places reliance on the case of Habib alias Ghaffar Abba v. The State (2016 PCr.LJ 683).

5. Learned counsel for the applicant next submits that challan of the instant case has been submitted before the Civil Judge and Judicial Magistrate-I Ratodero and R&Ps of instant case have not been sent up to the Court of Session only because of the reason that main case is still pending before learned Magistrate for preliminary proceedings in terms of dicta laid down in case of Muhammad Ramzan (Supra). He further submits that the case has been challaned and the applicant is no more required by the police for the purpose of investigation or interrogation, hence he may be enlarged on bail. 6 Learned D.P.G appearing for the State opposes the bail application on the ground that offence with which applicant has been charged carries maximum punishment and case is fresh one, therefore, he do not deserve any leniency in shape of his release on bail.

7. Heard arguments. Since instant case is offshoot case of main case bearing Crime No.90 of 2020 of Police Station Naudero under Sections 302, 114, 148, 149 and 337-H(2), P.P.C. in which he has been granted bail by the same Additional Sessions Judge vide order dated 23.10.2020. However, the reason assigned by Additional Sessions Judge for declining instant bail to the applicant is that earlier bail application filed by the applicant before him was declined on 29.10.2020 with direction to file fresh bail application after submission of final challan. Although challan of the case has been submitted yet R&Ps were not submitted to him, therefore, he did not entertain the bail application and opted to decline it. It may be astonishing to note that the challan of main case has been filed and R&Ps of said main case have also not been sent up to the Court of Sessions nor were assigned to Additional Sessions Judge Ratodero, however, the R&Ps of instant case though are not required for preliminary proceedings as enshrined in the case of Muhammad Ramzan (Supra) yet bail application filed by the applicant has been declined by the Additional Session Judge though he has been granted bail by the same Additional Sessions Judge in main case vide order dated 23.10.2020 in following terms: "

11. Since challan has been submitted and applicants/accused are no more required for further investigation. Bail could be granted if accused had good case for bail on merits and mere his absconsion would not come in the way while granting him bail. The in hand is of similar nature. In such cases bail cannot be withheld as a matter of punishment as the rule for safe administration of criminal justice is bail and not jail (2009 YLR 131 Karachi).

12. In view of above facts and circumstances, discussion and appraisal of case law, therefore, applicants/accused have succeeded to make out the case of further enquiry. Accordingly applicants/accused Sajjad Ali son of Nazir Hussain Sadakat Ali son of Liaquat Ali and Hussain Bux son of Hoat Khan, all Maitla by caste are admitted on bail subject to furnishing solvent surety in the sum of Rs.400,000/- each (Four Lacs) and P.R bond in the like amount to the satisfaction of this Court."

8. As far as argument advanced by the learned D.P.G to the extent that maximum punishment is provided by the statute, therefore, he is not entitled for bail, is concerned, learned Bench of this Court in the case of Habib alias Ghaffar Abba (Supra) while granting bail in identical situation has held as under: "In the case of Jamaluddin alias Zubair Khan (supra), the Honourable Supreme Court has observed as under:- "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 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." While relying upon the above cited authority of Honourable Supreme Court and looking into the circumstances of the case, as applicant/accused has been granted bail in the main case registered under sections 353, 324, 34, P.P.C. by the learned Incharge/IV-Assistant Sessions Judge, Karachi Central vide order dated 15.07.2015. Prima facie, case against the applicant/accused requires further enquiry as contemplated under section 497(2), Cr.P.C., concession of bail is extended to the applicant/accused subject to his furnishing solvent surety in the sum of Rs.100,000/- (Rupees One lac only) and P.R bond in the like amount to the satisfaction of the trial Court." 9 It is settled law that if the place to be searched is already known and is situated nearby a locality which is inhabited, then it becomes mandatory for the police officer to join independent witnesses from the locality and make search and recovery in their presence. In instant case applicant Sadaqat Ali was already in police custody in Crime No.90 of 2020 and according to the prosecution he volunteered to produce offensive weapon from the room constructed over a Fish Pond, as such the police was aware of the place from where they had to make search well in time. As such it was incumbent upon the investigating officer to join two or more responsible persons to witness the recovery to which they have failed and no explanation whatsoever has been given. Prosecution has failed to establish the exclusive possession of the room as well as Fish Pond which was in access to general public. It is stated that offensive weapon was produced by the applicant from the room constructed over Fish Pond as such exclusive possession is not there. No doubt the application of section 103, Cr.P.C. is ousted under the Act yet when a person was going to be charged with the offence for which police had advance information then it was incumbent upon police officer to associate two independent cum respectable witnesses from the locality for which no explanation has been furnished by the prosecution. Since the applicant has been granted bail in the main crime/case and this is an offshoot of above said crime and prosecution has miserably failed to associate the private mashirs for the recovery and have violated provisions as contained under section 103, Cr.P.C.

10. Accordingly in my view applicant has successfully made out a good prima facie case for his release on post arrest bail, therefore, instant bail application is hereby allowed subject to furnishing solvent surety in the sum of Rs.100,000/= and P.R bond in the like amount to the satisfaction of Judicial Magistrate-1, Ratodero where case is pending for preliminary proceedings and if such proceedings have stood completed and file has been sent up to the Court of Session then applicant should furnish surety before learned sessions Judge/trial Court, as the case may be. JK/S-27/Sindh Application allowed.