YOUSIF ALI KHAN Versus State
ORDER
ABDUL MAALIK GADDI, J.--- Through this bail application, applicant Yousuf Ali Khan seeks pre-arrest bail in crime No.290 of 2019 registered under section 23(a)(b)(c) of Sindh Arms Act, 2013 at Police Station A-Section Nawabshah. Earlier, applicant had filed Criminal Bail Application before the trial court for grant of bail but the same was dismissed vide-order dated 09.11.2019.
2. Precisely facts of the prosecution case are that on 11.10.2019 at about 0500 hours, the police party headed by SIP/SHO Rasheed Ahmed Memon of P.S A-Section Nawabshah with aid of SHO Women Police Station and Incharge Madagar-15 along with staff, conducted a tip-off raid at the house of applicant/accused, belonging to MQM London Group, situated at Camp No.02 Nawabshah and found a heavy quantity of arms and ammunition illegally stored there for selling purpose. However, the accused Yousuf alias Baroodi, having stood beside the gate of his house managed his escape good on noticing arrival of police parties. The complainant party took custody of the arms and ammunition and checked the same one by one and prepared such memo of recovery of arms, ammunition, cartridges and magazines. Since the applicant/ accused used to keep the unlicensed weapons, bullets, cartridges and magazines in his house and assemble them and sell out the same, hence this FIR was lodged on behalf of the State.
3. Learned counsel for the applicant has argued that that the case against the applicant is false and fabricated one; that false implication of applicant with mala fide of police cannot be ruled out; that the applicant is authorized dealer of arms and ammunition, and has his shop under the title as "Khan and Co. Arms and Ammunition Dealers" having a valid license dated 11.12.1992 granted in the name of Akbar Ali Khan, brother of the applicant, by the competent authority and the same has been validly renewed up to 21.12.2019; that the applicant has been authorized by the home department to carry out the business of sale and purchase of the arms; that the shop of the applicant is situated at Mohni Bazar Nawabshah on rent basis, which was ordered to be vacated in terms of writ of possession issued by learned Rent Controller in favour of landlord of the shop; that the applicant had to shift his shop from Mohni Bazar to Sakrand Road and moved such application before Deputy Commissioner Nawabshah on which no objection was also given by the SSP. Shaheed Benazirabad for shifting the shop from Mohni Bazar to Camp No.02 Kazi Ahmed Road Nawabshah as such the shop was shifted; that the police of PS A-Section Nawabshah forcibly broken the locks of the shop and took away 98 weapons including 500 magazines, Ari Gun and others accessories of the weapons, whereas the police has shown only 88 weapons and ten weapons have been taken away by the police which are not shown in the FIR; that all the weapons shown in the FIR are legally purchased by the applicant with all legal documentation which are verified by the competent authority; that the applicant is engaged in a lawful business; that the witnesses cited in the FIR are police officials and no any independent person is cited either as mashir or as witness of the case; that the offences have been miss applied in the present case; that the alleged offences do not fall within the ambit of prohibitory clause of section 497, Cr.P.C.; that the applicant is innocent and committed no offence and there is nothing on record to connect him with the alleged offence, therefore, he prays for confirmation of interim bail.
4. On the other hand, learned A.P.G has opposed the bail application on the ground that the applicant/accused is involved in a case of keeping arms and ammunition and is belonging to MQM London Group and heavy quantity of arms and ammunition has been recovered from his house without lawful and valid license; that PWs have fully supported the version of FIR and the police officials are as good witnesses as private persons unless any ill will or mala fide is established and the applicant/accused has failed to show any enmity of police officials for false implication, therefore, he is not entitled for concession of extra ordinary relief of pre-arrest bail.
5. I have heard the arguments advanced by learned counsel for the parties and perused the material available on record. It appears from the record that case has already been challaned and applicant/accused is no more required for investigation. It appears from the record that the present case is based upon advance information regarding the availability of present applicant at the place of incident with case property but despite of advance information complainant did not bother to associate any independent person either from the place of information or from the place of incident to witness the event. No reason has been assigned by the complainant as to why he did not bother to associate any independent person to witness the event although the place of incident was thickly populated area surrounded by residential houses. The prime object of section 103, Cr.P.C. is to ensure transparency and fairness on the part of police during course of recovery, curb false implication and minimize the scope of foisting of fake recovery upon accused. No doubt police witnesses are as good as other independent witnesses but when case of the prosecution wholly based upon the evidence of police officials; therefore, their evidence are required to be minutely scrutinized at the time of trial whether the incident has taken place in a fashion as stated in the FIR or otherwise.
6. Besides, the allegation against the applicant is that he kept un licensed weapons in his possession which were allegedly recovered from his house. However, the said allegation is seriously disputed by learned counsel for the applicant on the ground that applicant is an authorized dealer of (arms and ammunition) and running the said business in the name and style as "Khan and Co. Arms and Ammunition Dealer" and all the weapons which were allegedly recovered from the house of applicant are licensed one and in this regard he referred a list available at pages 67 to 75 of the case file, which is too specify the numbers of weapons which are mentioned in the FIR. Learned counsel also shows the register of stock and sale of arms and ammunition maintained by the applicant, which is duly verified by the DSP Saddar Nawabshah but when this fact confronted to learned A.P.G for its reply, she has no satisfactory answer with her.
7. It is also noted that a huge quantity of weapons has been recovered from the house of applicant for which learned counsel submits that earlier the applicant was running the said business at the shop situated at Mohni Bazar Nawabshah on rent basis, which was ordered to be vacated in terms of writ of possession issued by learned Rent Controller in favour of landlord of the shop and thereafter, the applicant had to shift his shop from said Mohni Bazar and got permission by way of moving application before the concerned Deputy Commissioner Nawabshah on which no objection was also given by the SSP Shaheed Benazirabad for shifting the shop from Mohni Bazar to Camp No.02 Kazi Ahmed Road Nawabshah. It is stated by learned counsel for the applicant that police had forcibly broken the locks of the shop of applicant and took away 98 weapons including 500 magazines, Ari Gun and others accessories of the weapons, whereas the police has shown only 88 weapons and ten weapons have been taken away by the police which are not shown in the FIR and foisted the same upon the applicant as un-licensed weapons therefore, on this ground alone false implication of the applicant/accused in the present case could not be ruled out. However, it is yet to be determined at the time of trial whether the said weapons have been foisted upon the applicant / accused or otherwise.
8. As observed above, the case has been challaned therefore, sending the applicant to jail would not serve any purpose. In the given circumstances, I am of the considered opinion that the applicant has made out his case for further enquiry; therefore, the interim pre-arrest bail already granted to the applicant vide order dated 14.11.2019, is hereby confirmed on the same terms and conditions with direction to the applicant to appear before the trial Court to face the trial.
9. Needless to mention that the observations made hereinabove are tentative in nature and shall not prejudice the case of either party at the time of (sic.).
10. Before parting, I would like to make it clear that if the applicant misuses the concession of bail in any manner, then the trial Court is fully authorised to take every action against the applicant and his surety including cancellation of bail without making any reference to this Court. Since it is the case of keeping un-licensed weapons therefore, the trial Court is directed to proceed with the trial and shall decide the same preferably within a period of three (03) months from receipt of this order. Compliance report shall be submitted through the Additional Registrar of this Court. Office is directed to communicate this order to the trial Court for information and compliance.
ADN/Y-2/Sindh Bail confirmed.