KHAIR MUHAMMAD vs THE STATE
The applicant sought post-arrest bail in a case registered under section 13(d) of the Arms Ordinance, 1965, relating to the alleged recovery of a Kalashnikov and 120 bullets following a police raid. The core legal question was whether the non-compliance with the mandatory provisions of section 103 of the Code of Criminal Procedure 1898, regarding the association of independent witnesses during the raid, entitled the accused to bail. The Sindh High Court held that the police failed to observe statutory provisions by not associating independent persons during the night raid on a populated village, and that the principles enunciated in precedent case-law supported the bail plea. The application was consequently allowed, and the applicant was granted bail subject to furnishing surety and a P.R. bond. The key principle laid down is that disregard of the mandatory provisions of section 103, Cr.P.C. during a search and recovery makes out a fit case for the grant of post-arrest bail.
- Does failure to associate independent witnesses during a police raid in violation of section 103 of the Code of Criminal Procedure 1898 make out a case for post-arrest bail?
- Whether the recovery of weapons without complying with mandatory search provisions entitles an accused to bail under section 13(d) of the Arms Ordinance 1965?
- Section 13(d), Arms Ordinance 1965
- Section 103, Code of Criminal Procedure 1898
ORDER
1. ' The applicant has been booked in a case for an offence punishable under section 13(d) Arms Ordinance, 1965.
2. ' The facts of the case, as disclosed in the F.I.R. Lodged by Inspector Khuda Bux Panhwar incharge C.R.O., Jacobabad, are that on 29-5-2004 at 2350 hours he was present in his office at Jacobabad, when he received spy information about presence of culprits in village. Khair Muhammad Jamali at' Garhi Khairo. He raided the village and apprehended the applicant along with 5 persons more.
3. He recovered Klashnikov and 120 bullets from the applicant and guns//rifles from others.
4. ' I have heard Mr. Attar Abdul Sattar, learned counsel for applicant and Mr. M.I. Bhutto, learned counsel for the State, the latter concedes to grant of bail.
5. ' Learned counsel for the applicant contended that despite spy information the police did not associate any independent person and raided the village of the applicant in total violation of the provisions of section 103, Cr.P.C. He relied on Atta Hussain v. Sate (PLD 2002 Kar. 113) and Imran Ahmed v. State (2001 M LD 986), in support of his contentions. He further pointed out that although the F.I.R. Mentions about recovery of unlicensed guns and rifles from other 5 persons, but the order of the learned Magistrrate, who granted bail to them shows that those were licensed fire-arms.
6. ' Mr. M.I. Bhutto submits that the raid was conducted during night and the provisions of section 103, Cr.P.C. Should have been complied with, but the .Police has failed to observe a legal provision.
7. The principles laid down in the cases cited by the learned counsel for applicant support the bail plea. Nevertheless, the principle laid down by the Hon'ble Supreme Court in State v. Bashir (PLD 1997 SC 408) is fully applicable to the instant case. Even on facts, the applicant has a better case. In the cited case the place raided was near a graveyard, but in the instant case a big village has been raided by police and headman of the village has been apprehended in utter disregard of the statutory provisions of section 103, Cr.P.C. A case for bail, as. Such is made out.
8. ' Resultantly, the application is allowed. The applicant be released on furnishing surety in the sum of Rs.50,000 and P.R. Bond in the like amount, to the satisfaction of the trial Court.
Cited by 2 cases
- Syed WASIM SHAH Versus State 2010 YLR 2850
- JAMIL AHMED vs THE STATE 2008 YLR 2184