Syed WASIM SHAH Versus State
The applicant sought post-arrest bail in a case involving the recovery of a Kalashnikov, a .30 bore pistol, 3,000 rounds of ammunition, and thirty lac rupees from a vehicle he was driving. The applicant contended false implication and police mala fide, noting the absence of private witnesses and discrepancies regarding the pistol's inclusion in the FIR versus the challan. The State opposed the bail, arguing the recovery indicated the applicant's involvement in terrorism-related activities. The Court held that the recovery of substantial weaponry and cash from the applicant's possession established a prima facie connection to the offense. Distinguishing the applicant's cited precedents, the Court emphasized that while the offense might not fall within the prohibitory clause, bail is not a right. Citing Supreme Court jurisprudence, the Court held that offenses directed against society, such as terrorism-related arms possession, warrant stricter judicial discretion. Consequently, the Court refused bail, determining that the serious nature of the allegations and the context of urban terrorism precluded the grant of relief.
- Does the recovery of illegal arms and a large sum of money from an accused's possession constitute sufficient grounds to deny bail?
- Is bail a matter of right in cases involving offenses that do not fall under the prohibitory clause?
- Should courts exercise stricter discretion when granting bail in offenses directed against society as a whole compared to offenses against individuals?
- Section 13(d), Arms Ordinance 1965
ORDER
1. NADEEM AZHAR SIDDIQI, J.- - The applicant who has sought bail is facing trial in Sessions Case No.254 of 2008 before the Court of learned IInd Additional Sessions Judge, Malir, Karachi, under Crime No.258/2008 for the offence under section 13(d) of Arms Ordinance at Police Station Sohrab Goth, Karachi.
2. The allegation against the applicant is that police have secured from Pajero Jeep driven by the applicant one Kalashinkov, one .30 bore pistol, 3000 rounds and rupees thirty lacs.
3. During the pendency of the case before the Trial Court bail application was filed, which was dismissed vide order dated 21-2-2009 on the ground that the applicant was apprehended red-handed and one kalashnikov with three thousand rounds and huge amount recovered from his possession and prima facie sufficient material is available on record to connect the accused in the commission of offence.
4. Learned counsel for the applicants submits that the applicant has been falsely implicated in this case. He then submits that there is mala fide on the part of the police, as no private witness has been associated. He also submits that the recovery of .30 bore pistol was not disclosed in the F.I.R., but the same has been mentioned in the challan. Learned counsel has relied upon following reported cases:---
(1) Darya Khan v. The State (2004 YLR Karachi 201);
(2) Khair Muhammad v. The State (2005 MLD 572); and
(3) Muhammad Ramzan v. The State (2004 PCr.LJ 752).
5. Conversely, the learned A.P.-G. has vehemently opposed the bail application on the ground that the applicant was apprehended from whom one kalashnikov, one .30 bore pistol, 3000 rounds and Rupees thirty lac were recovered which shows that the applicant belongs to the group of terrorist and was purchasing weapons for the commission of terrorism. He then submits that on the pointation of the applicant, arms were recovered which the applicant was going to purchase from rupees thirty lacs.
6. I have anxiously considered the arguments of the learned counsel for' the parties. Gone through the material available on record and case-laws cited by the learned counsel for applicant.
7. The incident took place on 5-5-2008 and the name of applicant appears in a promptly lodged F.I.R. The arms have been recovered from the possession of the applicant, therefore, the involvement of the present applicant in the commission of offence cannot be ruled out. It is not appealable to a prudent mind that to falsely implicate the applicant recovery of arms along with rupees thirty lacs were foisted upon the applicant. The offence is non-bailable. No doubt the case is not falling under the prohibitory clause, but the bail cannot be granted as a matter of right as held by the Hon'ble Supreme Court of Pakistan in the case of Haji Muhammad Nazis v. The State (2008 SCMR 807). The Hon'ble Supreme Court in- the case of Imtiaz Ahmed v. The State (PLD 1997 SC 545) has held that Court in bail matter, has to make a distinction between an offence which is committed against an individual and an offence which is directed against the society as a whole and in the latter category of cases, has to be strict in exercise of discretion of bail.
8. The allegation against the applicant is very serious in nature and keeping in view the cases of terrorism in the city the bail cannot be rightly granted. The case-laws cited by the learned counsel for the applicant are distinguishable to the facts and circumstances of the present case.
9. The bail application was dismissed by short order dated 13-4-2009 and the above are the reasons.
10. H.B.T./W-4/K Bail refused.