NIZAMUDDIN alias NIZAM Versus State

ORDER

NAIMATULLAH PHULPOTO, J.--- Applicant Nizamuddin alias Nizam has applied for post-arrest bail in Crime No.149/2015, registered at Police Station Qasimabad, Hyderabad, under section 23-A of Sindh Arms Act, 2013.

2. Brief facts of the prosecution case as disclosed in FIR are that applicant/accused was arrested in Crime No.148/2015 of Police Station Qasimabad, Hyderabad under sections 324, 353 and 34, P.P.C. on 02.07.2015 and from his possession one .30-Bore Pistol without number and two live bullets were recovered. Thereafter, separate FIR bearing Crime No.149/2015 was registered on behalf of the State at same police station.

3. After usual investigation challan was submitted against the applicant/accused in the present crime.

4. Applicant/accused earlier moved applications for bail in the instant crime before the learned VIIIth Additional Sessions Judge, Hyderabad. Same was rejected vide order dated 15.07.2015. Thereafter, applicant/accused has approached this Court for same relief.

5. Learned counsel for the applicant/accused mainly contended that applicant/accused has been granted bail today in the main offence i.e. Crime No.148/2015 of Police Station Qasimabad, Hyderabad. He has further contended that the pistol, which is without number/description, has been foisted upon the applicant/accused by the police. It is easy to foist such type of weapon upon any person, but it is difficult to prove at trial. He has further contended that police has enmity with the applicant/accused and his family and he has referred to annexure-D, page-25 of the Court file, which is an application under section 22-A and B, Cr.P.C. filed by Mst. Hameedan wife of Zafarullah, claiming to be aunt of the applicant/accused. In the aforesaid application directions were issued by learned III-Additional Sessions Judge, Hyderabad, for registration of FIR against the police officials. It is submitted that police officials for taking the revenge have managed this false case against the applicant/accused and foisted pistol upon him. Lastly, learned counsel has argued that investigation is complete; challan has been submitted; accused is no more required for investigation; all the prosecution witnesses are police officials and there is no question of tampering with the prosecution evidence.

6. Syed Meeral Shah, Deputy Prosecutor General appearing on behalf of the State argued that TT pistol has been recovered from the possession of the applicant/accused in presence of the mashirs and alleged offence falls within the prohibitory clause of section 497, Cr.P.C. He has opposed the bail application.

7. I am inclined to grant bail to the applicant/accused for the reasons that he has been granted bail today by this Court in the main case i.e. Crime No.148/2015. In the present case 30-Bore pistol without number/description has been recovered from the possession of the applicant/accused. It is rightly contended that it is easy to foist such unlicensed pistol upon anybody and it is difficult to prove at trial. There is also background of enmity between the police and the applicant/ accused, as aunt of the applicant/accused had also got directions from the Court for registration of FIR against the police officials. Applicant/ accused is no more required for investigation purpose. All the prosecution witnesses are police officials, hence there is no question of tampering with the prosecution evidence. Needless to say that the Court while, hearing an application 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 applicant has been in jail from his arrest 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. Reliance is placed on Jamal-ud-Din v. State (2012 SCMR 573).

8. In view of above, I have no hesitation to hold that the case against the applicant/accusect requires further inquiry as envisaged under section 497(2), Cr.P.C. Consequently, the applicant/accused is granted bail subject to furnishing solvent, surety in the sum of Rs.100,000/- (Rupees one hundred thousand) and P.R. Bond in the like amount to the satisfaction of the trial Court.

9. Needless to mention that observations made hereinabove are tentative in nature and the trial Court while deciding the case on merits shall not be influenced upon by such observations.

Bail application stands disposed of.

ZC/N-33/Sindh Bail granted.