MUHAMMAD ALI Versus State

ORDER

1. MUHAMMAD TASNIM, J.--- Granted.

2. Granted subject to all just exceptions.

3. Applicant is booked in Crime No.336 of 2011, dated 1-8-2011 under section 13-D of Arms Ordinance, P.S. CID Sindh, Karachi. In the first place applicant applied for bail before the learned Ist Additional Sessions Judge. Karachi West, who vide his order dated 24-8-2011 has dismissed the bail application filed by the applicant. Against the aforesaid order present bail application has been filed.

2. The facts of prosecution case, as setout in the F.I.R., are that complainant Inspector Raja Khalid Mehmood lodged the F.I.R on 1-8-2011 at 0430 hours stated therein that on 1-8-2011 at 230 hours stated therein that he along with police party A.S.-I. Shahzad Ali, A.S.-I. Muhammad Ramzan, A.S.-I. Muhammad Yousuf, A.S.-I. Shahzad Ilyas, HC Muhammad Imran 25808 P.C. Qayoom 10519, HC Altaf Hussain, 5058, PC Faizan 2392, were on patrolling duty in search of the wanted absconders and religious terrorist in the Karachi City and when reached at P.S. Maripur received a spy information that a notorious weapon supplier from Dara Adam Khail, who from many days is supplying the huge ammunition through bus to Karachi and now he along with his other companions taking new delivery of the ammunition through Police Foundation vehicle bearing No.GA-4865, China Suzuki double cabin to Karachi viz (Northern bypass) Lucky Pehari. On such spy information, he along with police party reached at Northern bypass near Lucky Pehari, Maripur, Karachi and started snap checking. During the checking of above vehicle number car from Lucky Pehari, he made alert the policy party and when stopped the above mentioned car at 1.30, five persons were sitting in the vehicle were apprehended, who disclosed their names Muhammad Mukhtiar son of Azeem Ahmed car driver and also searched the said persons sitting in the vehicle and recovered one Kalashnikov with one thousand round live from Javed Ali son of Sher Muhammad, one Kalashnikov with 1000 bullets from Muhammad Ali son of Muhammad Ramzan, one rocket launcher, two gole, one LMG , two Kalashnikovs 4 repeater and 3500 rounds of Kalashnikov were recovered from driving seat, one Kalashnikov, two repeaters, 1500 bullets recovered from accused Aftab Ali son of Ahmed, two Kalashnikovs, four repeaters and 2500 bullets recovered from accused Muhammad Imran son of Muhammad Ramzan. All the recovered ammunition were seized and taken into police custody and registered the case against the arrested accused under section 13(d) Arms Ordinance.

3. Learned counsel for the applicant in support of the bail application has submitted that as per F.I.R complainant says that on spy information vehicle of the applicant was intercepted and on stopping the vehicle all the accused persons surrendered. They were taken into custody and weapons were seized. Learned counsel says that the Addl. I.G Police conducted a Press conference on 2-8-2011 wherein he has stated that the team headed by SSP Muhammad Aslam Khan has arrested the applicant and his companions. He has further placed on record two Press cutting of newspapers Kawish and Sukkaar dated 31-7-2011, wherein it has been stated that present applicant along with Muhammad Ali Balouch were missing from Mirpurkhas since 31st July, 2011 while going to Hyderabad. Learned Counsel says that applicant was arrested some where between Mirpurkhas and Hyderabad but his arrest has been shown by the police at Karachi on the date of alleged occurrence. Learned counsel says that as per F.I.R one Kalashnikov and 1000 bullets were allegedly recovered from the applicant, He further says that Addl. I.G. Police in his Press conference had stated that LMGs, repeaters rifles, T.T. pistols and 20000 bullets were recovered from the accused persons. Learned counsel says that Kalashnikov does not include in the weapon mentioned by the Addl. I.G. Police in his Press conference. Learned counsel says that no recovery whatsoever has been effected from the applicant and the same has been foisted upon him just to falsely implicate in this case. He says that at the time of arrest and alleged recovery provision of section 103, Cr.P.C. have been violated. Learned counsel says that the case of applicant does not fall under prohibitory clause and he may be admitted to bail, even otherwise case of the prosecution is doubtful which requires further enquiry. In support of his contention, learned counsel has relied upon the case of State v. Basher PLD 1997 SC 408, Atta Muhammad alias Fauji v. The State 1995 SCMR 1409 and the case of Pakistan Lawyers Forum v. Federation of Pakistan PLD 2011 Lahore 382

4. On the other hand learned A.P.-G. has vehemently opposed the grant of bail and has submitted that there is ample material available with the prosecution, which connects the present applicant with the commission of offence. Learned A.P.-G. further says that arrest and recovery was effected in accordance with law and one private person was associated at the time of arrest and recovery from the applicant. He further says that applicant was having automatic weapons with 1000 bullets and there was likelihood that applicant might have committed the offence of heinous nature against the society.

5. I have heard the learned counsel for the parties and have perused the record.

6. A tentative assessment of the record shows that as per F.I.R complainant claims that he had apprehended the accused persons named in the F.I.R. and large quantity of weapons was recovered from them. Whereas perusal of news items in daily News dated 2nd August, 2011 shows that a Press conference was conducted by Addl. I.G. Police who claimed that accused persons were apprehended by the team headed by SSP Muhammad Aslam Khan and an encounter also took place. Perusal of the news items further shows that recovered weapons have been mentioned therein which included LMGs, repeater rifles. T.T. Pistols, and 20000 bullets, it did not include the Kalashnikov. On the other hand if F.I.R is examined it shows that one Kalashnikov and 1000 bullets were allegedly recovered from the applicant. It is an admitted position that punishment with the offence charged is maximum 7 years but not less than 3 years. At the bail stage, lower side of the punishment is to be taken into consideration. As per prosecution case one private witness of the vicinity was shown as mushir. In the case of State versus Bashir and others PLD 1997 SC 408, Hon'ble Supreme Court while dealing with the provision of section 103, Cr.P.C. have observed as under:--

7. "As regards the above second submission of Mr. M.M. Aqil, it may be observed that it has been repeatedly held that the requirement of section 103, Cr.P.C. namely, that two members of the public of the locality should be Mashirs to the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two mashirs from the public. In this regard, it will suffice to refer to a recent Judgment of this Court in the case of Mushtaq Ahmed v. The State PLD 1996 SC 574. In the case in hand SIP Muhammad Rafique has not been able to give any cogent explanation as to why he was unable to secure two Mashirs from the public."

8. With regard to the objection of the leaned A.P.G. that at bail stage, Press cuttings cannot be taken into consideration unless author of the documents is examined, such piece of evidence cannot be relied upon. He is right in saying that documents cannot be proved unless author is examined. In the present case a bail application is under disposal and a tentative assessment is being made just to find out as to whether applicant is prima facie connected with the commission of offence or not. Superior Court have been considering the Press cutting to dig out the truth and this aspect of the matter has come up for consideration before the Full Bench of Lahore High Court in the case of Pakistan Lawyers Forum v. Federation of Pakistan PLD 2011 Lahore 382 while dealing with the Press cutting the learned Judge has dealt with the issue in the following word:--

9. "It is a longstanding principle that newspaper reports about the events that are not rebutted are treated as reliable evidence. Refer Islamic Republic of Pakistan v. Abdul Wali Khan M.N.A. (PLD 1976 SC 57) at page 112 and reiterated recently in Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 879).

10. In view of the above, it is crystal clear that the version in the F.I.R. is not in lines with the contents of the news item of daily News dated 2-8-2011, wherein the press conference of the Addl. I.G. Police has been published which creates doubt so much so such news item did not include the recovery of the Kalashnikov for which the present applicant has been charged. Even otherwise case does not fall under prohibitory clause. The ease of prosecution is not free from doubt. In this view of the matter, applicant has successfully made out a case of further enquiry in terms of subsection (2) of section 497, Cr.P.C. Accordingly he is admitted to bail on his furnishing solvent surety in the sum of Rs.l00,000 and P.R. bond in the like amount to the satisfaction of the trial Court.

11. At this stage learned counsel for applicant says that since there are strikes in the District Courts and he will not be able to furnish the surety before the Trial Court. He requests that he may be allowed to furnish surety in the sum of Rs.l00,000 and P.R. bond in the like amount before the Nazir of this Court. Let the applicant furnish the surety before the Nazir of this Court.

12. N.H.Q./M-203/K Bail allowed.