Muhammad Shahid @ Chooran vs NOT
This bail application arises from a criminal case where the applicant, Muhammad Shahid, sought post-arrest bail regarding an offense under the Sindh Arms Ordinance, 2013. The applicant had been charged with possessing illicit weapons, specifically a Kalashnikov and a grenade. The core legal question was whether the applicant was entitled to bail given the nature of the offense, the alleged non-compliance with recovery procedures, and the fact that the applicant had already been granted bail in a related case. The Court observed that the recovery of the weapon lacked independent witnesses, indicating a failure to comply with Section 103 of the Code of Criminal Procedure, 1898. Furthermore, the Court noted that the offense did not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure, 1898, and the applicant was no longer required for investigation purposes. Consequently, the Court held that the case warranted further inquiry and granted bail, emphasizing the principle that the law favors liberty over incarceration when evidence tampering is unlikely and the offense is non-prohibitory.
- Does the failure to associate independent witnesses during a recovery violate the mandatory requirements of Section 103 of the Code of Criminal Procedure, 1898?
- Is an accused entitled to bail when the alleged offense does not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure, 1898?
- Can bail be granted when the accused is no longer required for the purpose of investigation?
- Section 23(1)A, Sindh Arms Ordinance 2013
- Section 353, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 103, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
1. Granted subject to all just exceptions.
2. Applicant, Muhammad Shahid @ Chooran, booked in Crime No. 324/2013 registered at Police Station CID Sindh, Karachi under section 23(1)A, Sindh Arms Ordinance, 2013, has sought bail on the grounds that the applicant/accused has been admitted on bail in main case being Crime No. 319/2013 registered under section 353, 324/34 PPC with Police Station CID Sindh, Karachi by order dated 20.6.2013, copy of which has been annexed with the memo of bail application.
Brief facts of the prosecution case as narrated in the FIR lodged by the complainant namely S.I.P. Ali Nawaz are that on the day of incident he alongwith police officials was busy in area patrolling when they received information about the availability of the culprits, on such information they reached at pointed place and tried to caught the accused persons, on seeing the police party they started firing upon the police party with intention to kill the police party. Police party in self defence also started firing, thereafter the accused persons fled away and one of the motor cycle of accused persons fall down at spot, as such the police taken into custody of the motor cycle.
Thereafter he lodged the FIR of the incident as above. The applicant applied for bail which was declined by the trial court hence present application has been filed on the grounds as set forth in the memo of bail application.
Learned counsel representing the applicant submits that the applicant is confined in central prison Karachi as he has been charge sheeted and facing trial; that the offence is not falling within the prohibitory clause of section 497 Cr.P.C. and that necessary compliance of section 103 Cr.P.C. pertaining to search, recovery of case property has not been conducted by the police as both the mashirs are police officials and record was made from dwelling.
On the other hand, learned Assistant Prosecutor General, Sindh opposed the bail application on the ground that prohibited automatic rifle (Kalashnikov) loaded with fifteen live bullets and a live grenade has been recovered, which shows that the applicant is a dangerous man.
Record transpires that the applicant who was already in custody of the police volunteered to produce the illicit weapon which was duly recovered on 02.4.2013. Admittedly, the memo of recovery does not show that what prevented the Investigating Officer to associate independent persons of the locality to act as mashirs, which shows glaring non-compliance of section 103 Cr.P.C on his part. It is also an admitted fact that applicant/accused has already been enlarged on bail by the trial court in FIR No. 319/2013 under section 353, 324/34 PPC, registered with Police Station CID Sindh, Karachi. It is a fact that alleged office does not fall within the prohibitory clause of section 497 Cr.P.C. and since the applicant/accused has been challaned, therefore, he is no more required by the police for the purpose of investigation. In such view of the matter, learned counsel for applicant has rightly contended that law is in favour of bail rather jail, particularly, all the PWs are police officials and there is no chance of tempering of the prosecution evidence by the applicant/accused. Being a case of further enquiry under section 497(2) Cr.P.C., the applicant/accused is admitted to bail subject to his furnishing solvent surety in the sum of Rs.1,00,000/- (Rupees one lac only) and P.R.Bond in the like amount to the satisfaction of the trial court.
This bail application stands disposed of in the above terms.