ABDUL REHMAN alias SAIN Versus State

ORDER

SYED SAEEDUDDIN NASIR, J.-- The applicant Abdul Rahman alias Sain seeks post arrest bail after the same was declined vide; order dated 03.03.2015 passed by the learned 1st Additional Sessions Judge, Karachi-Central in connection with Crime No.02/2015 of Police Station New Karachi under Section 23(I)A, Sindh Arms Act, 2013.

2. Brief facts of the case as alleged in the above said FIR are that on 02.01.2015, at 6.00 a.m. the Police party of Police Station New Karachi, headed by ASI Rana Muhammad Arif arrested applicant/accused in crime No.01/2015 under Sections 353, 324, 34 P.P.C. Police Station New Karachi from main road near Geo Market Sector 11-J, New Karachi, and at the time of his arrest applicant/accused was alleged found in possession of an unlicensed 9 mm pistol, without number, loaded magazine containing two live bullets, over its barrel CZ 100 call 9 mm Czechoslovakian and on its body Frontier arms company Peshawar was engraved and when asked for license, the accused could not produce the same, hence, instant FIR, under Section 23(1)A, Sindh Arms Act, 2013, was registered against him.

3. Mr. Fazal-ur-Rahman, the learned counsel for the applicant has inter alia contended that the present accused is innocent and has been falsely implicated by the complainant due to mala fide intention; the present accused has been granted bail in the main case under Section 353/324/34, P.P.C. by the Court of IVth Assistant Sessions Judge, Karachi-Central and as such per rule of consistency the applicant/ accused is entitled to concession of bail; nothing has been recovered from the possession of the applicant/accused in the presence of private witnesses and all the witnesses are Police personnel of the same Police Station; the allegedly recovered weapon has been foisted upon the applicant/accused; the case of the applicant/accused is that of further inquiry under Section 497(2), Cr.P.C. inasmuch as there is no private eye witness of the incident, therefore, there is clear violation of Section 103, Cr.P.C; that the prosecution has submitted final Challan with the trial Court and the applicant/ accused has been sent to the judicial custody, therefore, the accused is no longer required for further investigation or interrogation by the Police; the pistol does not come within the definition of a fire arm under the Sindh Arms Act, 2013; the offence is neither punishable with death or life imprisonment and lesser punishment is not defined under Section 23(1)A of the Sindh Arms Act, 2013, which could be according to the discretion of the Court. The learned counsel for the applicant further contends that the learned trial Court wrongly came to the conclusion that when other criminal cases are pending against the accused, he cannot be admitted to bail. The learned counsel for the applicant placed reliance on following case law wherein it is held that mere registration of criminal cases against a person was no proof of his being a habitual offender, unless found guilty of trial and the bail cannot be withheld on this count alone;

(1) Shahid Ali Laghari v. The State 2014 PCr.LJ 429 [Sindh], (2) Moundar and others v. The State PLJ 1989 SC 1 [Appellate Jurisdiction] (3) Liaqat Ali alias Lakki v. The State 2008 PCr.LJ 1573 [Lahore], (4) Raja Muhammad Younus v. The State 2013 SCMR 669.

4. On the other hand the learned APG appearing for the State has opposed the grant of bail on the ground that the applicant/accused is also nominated in other FIRs which are said to be pending adjudicated in various Courts; the FIR in the present case was promptly lodged soon after the arrest and recovery of weapon by the Police and the name of applicant/ accused is mentioned in the FIR; the bail cannot be granted as a matter of right where the lesser punishment is less than 10 years.

5. I have heard the arguments of the learned counsel for the parties, perused material available on the record of the case, examined the case law cited by the learned counsel for the applicant/accused. I do agree with the submission of the learned counsel for the state that the applicant is previously convicted or is a hardened, desperate and dangerous criminal and mere registration of criminal cases against him is no proof of his being a habitual offender unless he is found guilty after the trial. There is no private mashir of the recovery of the weapon from the applicant/accused. The final Challan has been submitted by the prosecution with the trial Court and the accused has been committed to judicial custody, therefore, it is an admitted fact that the accused is no longer required by the prosecution for investigation. The lesser punishment under Section 23(1)A of the Sindh Arms Act, 2013 has been left at the discretion of the Court, however, the maximum punishment is imprisonment for 14 years. Since the lesser punishment is not 10 years, therefore, the offence does not fall within the prohibitory clause of Section 497, Cr.P.C. I do not agree with the observation of the learned trial Court while dismissing the bail application of the applicant/accused that since the accused is facing trial in other criminal matters, therefore, the concession of bail should not be granted to him. On the material available on the record the case of the accused is that of further inquiry. It is pertinent to note that the accused has already been granted bail in case Crime No.01/2015 under Sections 353/324/34, P.P.C. by the learned Court of IVth Assistant Sessions Judge, Karachi-Central.

6. For the aforesaid reasons I admit the applicant/accused to bail subject to his furnishing solvent surety in the sum of Rs.100,000 and P.R. Bonds in the like amount to the satisfaction of the trial Court.

HBT/A-60/Sindh Bail granted.