Pakistan Case Law
2016 P Cr. L J 683

ABIB alias GHAFFAR ABBA vs The STATE

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Citation2016 P Cr. L J 683
CourtSindh High Court
Case No.Criminal Bail Application No.970 and M.As. Nos. 5735, 5408 of 2015
Date2015-08-19
Judge(s)Naimatullah Phulpoto
ResultBail allowed
AI Summary — generated from this judgment; read the full text below and verify before relying on it.

This is a post-arrest bail application filed by an accused charged under the Sindh Arms Act, 2013, for the alleged possession of an unlicensed pistol. The core legal question was whether the accused was entitled to the concession of bail given the circumstances of the recovery, the lack of independent witnesses, and the status of the investigation. The Sindh High Court granted bail, noting that the investigation was complete, the accused was not required for further investigation, and the recovery witnesses were exclusively police officials. The court reaffirmed the principle that when considering bail, the court should not focus solely on the maximum sentence provided by the statute, but rather on the sentence likely to be entailed by the specific facts and circumstances of the case. Additionally, the court held that where the prosecution relies solely on official witnesses for a recovery, and the accused has already been granted bail in the main case, a case for further inquiry under the Code of Criminal Procedure 1898 is established.

Questions settled in this judgment
  • Does the absence of independent witnesses in a recovery case entitle an accused to the concession of bail?
  • Should a court considering a bail application focus on the maximum statutory sentence or the likely sentence based on the facts of the case?
  • Does the completion of investigation and the lack of risk of tampering with evidence constitute grounds for granting post-arrest bail?
Laws & provisions referred
  • Section 23(1)(a), Sindh Arms Act 2013
  • Section 353, Pakistan Penal Code 1860
  • Section 324, Pakistan Penal Code 1860
  • Section 34, Pakistan Penal Code 1860
  • Section 497, Code of Criminal Procedure 1898
  • Section 497(2), Code of Criminal Procedure 1898
post-arrest bailunlicensed weaponSindh Arms Actrecovery witnessesfurther inquirystatutory sentencepolice officials

ORDER

1. NAIMATULLAH PHULPOTO, J.---This is an application for grant of post arrest bail in a case registered against applicant/ accused Habib alias Ghaffar Baba on 27.06.2015 being Crime No.215/2015, registered at P.S. Shahrah-e-Noor Jahan, Karachi, under sections 23(1)(a) of the Sindh Arms Act, 2013.

2. Brief facts of the prosecution case as disclosed in the FIR are that on 27.06.2015 SIP Ayoub Siyal lodged his report on behalf of the State, alleging therein that applicant/accused was arrested by police in Crime No.213/2015 under sections 353, 324, 34, P.P.C. And from his possession one .30 bore pistol, having three rounds in its magazine, recovered for which he had no license. Mashirnama was prepared thereafter applicant/accused along with case property was brought to the police station where FIR was lodged against the applicant/accused under the above referred sections.

3. Weapon was sent to FSL and positive report was received. After usual investigation, challan has been submitted against the applicant/accused before the competent Court of law.

4. Bail application was moved on behalf of the applicant/accused before V-Additional Sessions Judge Karachi Central, the same was rejected vide order dated 15.07.2015. Thereafter the applicant/accused approached this Court for the similar relief.

5. Mr. Muhammad Ali Waris Lark, learned advocate for applicant/accused mainly contended that accused was arrested from Mochi Gali, North Nazimabad, Karachi, despite that no independent and respectable person of the locality has been cited as mashir. He has further contended that it is not mentioned in the mashirnama of arrest and recovery that in which country the alleged pistol was manufactured and pistol is without number. He has submitted that challan has been submitted; applicant/accused is in custody since 27.06.2015;, there is no progress in the trial. He has also argued that applicant/accused has been granted bail in the main case by learned Incharge/IV-Assistant Sessions Judge Karachi Central vide order dated 15.07.2015. He lastly contended that maximum punishment provided in the Statute for the alleged offence may not be awarded to the applicant/accused in the circumstances of the case. In support of his contentions he relied on the case of Jamaluddin alias Zubetir Khan v. The State (2012 SCM R 573) and Ibraheem v. The State (2014 YLR 2398 (Sindh)).

6. Mr. Abrar Ali Khichi, learned Assistant Prosecutor General Sindh, argued applicant/accused was carrying T.T. Pistol without license and alleged offence falls within the prohibitory clause of section 497, Cr.P.C. He opposed the bail application.

7. I am inclined to grant bail to the applicant/accused for the reasons that investigation is complete; accused is no more required for investigation; all the mashirs are police officials; there is no question of tempering with the evidence; accused is in custody since 27.06.2015. Alleged pistol was without number or company. It is contended that pistol has been foisted upon accused by police due to enmity. Liberty of a person cannot be curtailed without legal justification. No efforts were made to call independent persons of locality. No other case of like nature is pending against accused. There is no progress in the trial. Needless to say that the Court while hearing 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. 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."

8. 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. Needless to mention that the above observations are tentative in nature and the trial Court shall not be influenced by the same at the time of deciding the case of the applicant/accused on merits.

Cited by 3 cases

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