IMDAD vs THE STATE
This matter concerns a post-arrest bail application filed by the applicant, Imdad, who was charged under Section 7(c) of the Surrender of Illicit Arms Act, 1991, for allegedly possessing an unlicensed gun and Bhung. The applicant contended that the gun was licensed to his grandfather and that the maximum punishment for the alleged offense was three years' imprisonment. The State Counsel conceded to the grant of bail. The Court observed that the police appeared to have acted maliciously by ignoring the existence of a valid license and fabricating the applicant's alleged confession that the weapon was unlicensed. The Court held that the applicant was entitled to bail given the circumstances and the State's concession. Furthermore, the Court exercised its authority to direct the registration of an F.I.R. against the complainant police officer for acting corruptly and maliciously in the exercise of his authority. The key principle established is that where police conduct is prima facie malicious and corrupt in fabricating evidence, the Court may order the registration of a criminal case against the delinquent officer.
- Is a court empowered to order the registration of an F.I.R. against a police officer for malicious conduct during the bail proceedings?
- Does the existence of a valid license for a weapon, even if held by a relative, constitute grounds for granting bail in an arms possession case?
- Can the High Court order an investigation against a complainant police officer upon finding prima facie evidence of corruption?
- Section 7(c), Surrender of Illicit Arms Act 1991
- Section 13, Arms Ordinance 1965
- Section 220, Pakistan Penal Code 1860
ORDER
1. ' The applicant Imdad is facing trial for an offence under section 7(c) of the Surrender of Illicit Arms Act, 1991 before the Court of learned Sessions Judge, Larkana. He seeks bail after rejection of his prayer by the learned trial Court.
2. ' The prosecution case, briefly, stated is that a police party of Police Station Barkani on 12-7-2001 under directions from their superior officers went by a private jeep for usual patrol. At about 20-30 hours they saw one person carrying a gun on his shoulder and a plastic Theli in his right hand. He was arrested and the gun and the Theli were secured. The Theli was found to be containing Bhung.
3. One live cartridge was found loaded in the gun while three other live cartridges were secured from the right side pocket of his shirt. Said person disclosed his name to be Imdad (present applicant) who disclosed that the gun was without licence. Accordingly after completion of formalities, the applicant was sent up as stated above.
4. ' It has been contended by the counsel for the applicant firstly that the gun is a licensed one and belongs to the grandfather namely Ghulam Muhammad Abro Of the applicant and secondly that the punishment even in the event of conviction of the applicant may be only three years' imprisonment.
5. ' On the other hand, learned State Counsel has conceded to the grant of bail to the applicant.
6. ' The licence holder Ghulam Muhammad has filed his affidavit stating therein that his gun was foisted upon his grandson Imdad (the applicant). Further, he is owner of the gun with a valid licence in his name. Besides a photostat copy of a licence in name of Ghulam Muhammad has also been placed on record.
7. From the above facts and circumstances, one fails to understand why the applicant was not challaned for an offence under section 13 of the Arms Ordinance, 1965. The learned State Counsel probably for not being able to substantiate the trial Court's order has conceded to the grant of bail.
8. It is difficult to draw a line whether from the facts and circumstances disclosed in the F.I.R. An offence under section 13 of the Arms Ordinance would not be made out. The offence even under the section 7(c) of the Act, 1991 makes the offence punishable for three years' R.I. As its minimum sentences. On the basis of the aforesaid, bail is granted to the applicant subject to his furnishing a solvent surety in the sum of Rs,50,000 and P.R. Bond in the like amount to the satisfaction of Additional Registrar of this Court.
9. ' The highhandedness of the police in this part of the Province is a common knowledge and it would not be far to seek instructions. The present case appears to be one of such instances. It is inconceivable that a person even when carrying a licensed gun of his father or a grandfather would fail to disclose before police that the said gun was unlicensed. Prima facie it appears to be true and convincing that the applicant must have disclosed before police that the gun was licensed one. Even though the said gun may be assumed to be in possession of the applicant at the relevant moment. The statement contained in the F.I.R. That the applicant disclosed the gun to be unlicensed must not have been made by the applicant. The A.S.-I. Azhar Ahmed Mangi of C.I.A.
10. Police, Larkana who is the complainant of the case prima facie appears to have acted maliciously and corruptly in the exercise of his authority. An F.I.R., therefore, shall be registered against him under section 220, P.P.C. At Police Station Bakrani. The same shall be investigated by a person of rank of D.S.P. And report be submitted to this Court within two weeks. The copy of this order be sent to the S.S.P., Larkana and the D.I.-G. Police, Larkana for compliance and report.