' SHAHID ANWAR BAJWA, J. F.I.R. No,262 of 2009 was registered on 4-10-2009. One Anastasios son of Moirarakis presented his baggage for search before the Airport Baggage Searcher who checked and suspected a bag. Upon search from it one Pistol 9 M.M. Make Glock No,NAR-547, made in Australia was recovered. Said pistol was concealed inside the Laptop. Consequently, accused Anastasios was taken into custody and from him were recovered pistol, passport and tickets. After registration of this F.I.R., during investigation Anastasios stated that the pistol had been given to him by Muhammad Naeem Sajid, the present applicant. Police went to house of the present applicant and found him sitting in his Parado vehicle parked outside his house. Anastasios identified him as who had given the pistol. Applicant was apprehended. Asked about the pistol recovered from Anastasios, he disclosed that he had not gifted the pistol recovered from Anastasios. He stated that the pistol was lying in back seat of his vehicle and he suspected the Anastasios had stolen it. Consequently, second bearing No,263 of 2009 was registered at Shah Faisal Town Police Station during the same night. Said Anastasios and present applicant were produced and were remanded for a period till 9-10-2009. On the same day as the incident occurred on the recommendation of Senior Superintendent of Police a Joint Interrogation Team was constituted for the purpose of investigation/interrogation of the two accused persons, arrested Anastasios and present applicant.
2. As stated earlier vide order dated 5-10-2009 both the Anastasios and present applicant were remanded from 5-10-2009 to 9-10-2009. On 9-10-2009 Anastasios was granted bail by Mr. Manzoor Ahmed Siddiqi 2nd Civil Judge and Judicial Magistrate, Malir Karachi.State recorded no objection to grant of hail and the Joint Interrogation Team had given its recommendation in the following words:-- " It is being recommended that accused namely Asnastasios son of Moirarakis may be bailed out after strict warning, keeping in light the record and business status of her mother and accused No,2, Muhammad Naeem Sajid son of Abdul Ghafoor Sajid may be sent up for judicial trial in the concerned Court."
3. Learned Judicial Magistrate while granting bail in last line of the order stated as under:-- "----He is directed before leaving the country obtained the permission from the Court."
4. On the same day that Anastasios was released he left Pakistan. To this respect returned letter.
5. Learned counsel for the applicant made the following submissions:--
(i) Pistol-in-question was lying in backside of Parado and Anastasios stole his pistol. Applicant discovered it only after he was arrested that his pistol had been stolen.
(ii) Pistol's market value in Pakistan at Rs,400,000 and in Greece it is available for 500 Euros. Nobody would gift/something valued at Rs,400,000 to someone who could buy it in his country of the self for one eighth the price.
(iii) Learned counsel submitted that Anastasios is from an extremely rich family.
(iv) Although Parado vehicle had nothing to do with the incident police took hold of this jeep. He referred to Tracker's report that the Parado Jeep was kept in the Police Station for five days and it was returned on 11-11-2009.
(v) Pistol-in-question was a licensed pistol and applicant also carries licences for other arms and in this connection he referred to various documents. He referred to letter dated 15-6-2009 whereby Section Officer, Ministry of Interior informed that the applicant could carry licenced weapon during section 144, Cr. P. C . Learned counsel also referred to the letter No,SSP/INV-II EAST/R/ 3270-72 written by Mr. Niaz Ahmed Khoso Senior Superintendent of Police Investigation-I East Zone dated 9- 10-2009 to Section Officer (Arms) Ministry of Interior, Government of Pakistan Islamabad requesting therein that licence No, 93198 of 2008 dated 12-12-2008 and No,003483 of 2007 dated 14-6-2007 issued by the Government of Pakistan may be cancelled. He also referred to letter No,SSP/INV-1/ East/R/ 3273-75 dated 9-10-2009 issued by Niaz Ahmed Khoso to Section Officer Arms and Security, Home Department, Government of Sindh, Karachi requesting therein that letter No, 2528/DCW/83 dated 3-3-1983 issued by DC/DM Central Karachi be cancelled. He also referred to letter No,SSP/INV-1/EA ST/R/3321-23 dated 14-10-2009 written by said Mr. Niaz Ahmed Khoso to the Commander Pakistan Navy Shootting Range, PNS Karsaz requesting him to cancel membership given to the present applicant.
(vi) Lastly, learned counsel submitted that although, accused Anastasios was ordered to be released on bail on 9-10-2009, on the same day his travel documents were released to him in violation of order passed by the Judicial Magistrate who had granted bail and thereafter he got a booking, boarded a plane and left Pakistan at about 3-00 P.M. Of the same day. Learned counsel submitted that efficiency is never without a quid pro quo.
6. When this case came up for hearing on 18-12-2009 Investigation Officer was directed to inform the Court as to under what circumstances Anastasios was permitted to leave Pakistan in spite of specific order by the Court who granted bail. Today he placed on record statement with which he enclosed documents. An application for return of item of personal search was filed on 9-10-2009.
On this application it was ordered that report from SIO Airport Police Station be submitted. On the same day report was submitted on which Judicial Magistrate ordered that items stated in the report be returned. Consequently, documents were returned and Anastasios vanished from the Radar Screen of Pakistan in an Aircraft.
7. Learned counsel for applicant relied upon Ch. Muhammad Ashraf v. The State 1990 PCr.LJ 347 to contend that proceedings in the court below should be quashed. Facts of that case were that one Ch. Muhammad Ashraf was staying in Hotel Mehran along with his nephew Ch. Naeem. He was to leave for Islamabad to participate in death anniversary of his mother. He therefore left his nephew Ch. Naeem with his luggage in the hotel with promise to return after two days. His return was delayed with the result Ch. Naeem also proceeded to Islamabad carrying luggage belonging to applicant without knowing that it contained his licenced revolver. When luggage was given to the scanning counter revolver was detected by the officials of Airport Security Force. Out of fear Ch. Naeem did not claim the luggage. In the meanwhile on 3-2-1998 a case under section 13-D of the Arms Ordinance was registered. Eventually, Ch. Ashraf returned to Karachi and narrated the facts.
He was sent up for trial. Application under section 249-A, Cr.P.C. Was filed, same application was dismissed with direction that it may be filed after charge is framed and at least two witnesses had been examined. It was in the circumstances that Cr. Miscellaneous. Application under section 561- A, Cr. P. C. Was filed. High Court first noticed provision of section 249-A, Cr.P.C. In the following words: -- "Section 249-A, Cr.P.C. Provides that nothing in Chapter XX of the Code of Criminal Procedure, 1898, shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if after sharing the prosecutor and the accused and for reasons to be recorded, he considers that he charges the accused and for reasons to be recorded, he considers that the charge is groundless or that there is , no probability of the accused being convicted of any offence. On a plain reading of this section it is clear that a Magistrate has got powers to acquit the accused even if no witnesses are examined. The word 'groundless' used in this section is not capable of any precise definition. It, however, means when there are no good grounds for charge. If acting judiciously the Magistrate comes to the conclusion that no criminal offence is made out he can acquit the accused under this section even before the charge is framed."
8. Thereafter the Court observed that on the facts on record there was no delivery of revolver by the applicant to his nephew Ch. Naeem. The Court held that delivery as contemplated by section 16(b) of the Arms Ordinance, 1965 should be a delivery given to the person with control over the arms and authority to use it as an arm.
9. Here, in the present case learned counsel has contended that even if it is assumed that weapon was given by the applicant to Anastasios, there was no ammunition with it and therefore weapon could not be used. I do not think, this C carries any substance. Even a pistol which has no bullet can be used to terrorize others because the other person facing the pistol does not know whether there is any bullet in it or not. The reported case is clearly distinguishable from present case. In case reported case. Ch. Naeem stated that uncle left luggage and he did not know as to what was in it.
In the present case Anastasios has stated that present applicant had given him pistol. Therefore, there are material differences in the two cases.
10. Facts of the case as have been narrated above in detail. After having considered all aspects, I think justice demands that the following orders be passed:--
(i) As far as two letters by the Investigating Officer Niaz Ahmed Khoso to Section Officer (Arms)
Ministry of Interior Government of Pakistan written on 9-10-2009 and to Section Officer (Arms and Security), Home Department Government of Sindh, dated 9-10-2009 are concerned, the two authorities shall not take any action on these letters except in accordance with the law. In this regard two authorities shall not make any final decision without issuing show-cause notice and proper determination as has been held in Malik Nazim-ud-Din Nazin v. Government of Punjab and others 2001 M LD 94, Abdul Ghafoor v. The State PLD 1982 Kar.469, Ali Haider v. (1) Ijaz Hussain Malik, District Magistrate Rawalpindi and (2) Commissioner, Rawalpindi Division 1968 PCr.LJ 127 and Qasim v. Commissioner, Sukkur Division and others 1989 PCr.LJ 189.
(ii) As far as letter No,SSP/INV-1/EAST/R/3321-23 dated 14-10-2009 written by said Mr. Niaz Ahmed Khoso to the Commander Pakistan Navy Shooting Range, PNS Karsaz 14-10-2009 (at page 247) written by Mr. Khoso to Commander Pakistan Navy Shooting Range PNS Karsaz Karachi is concerned said Mr. Khoso shall write letter to the Commander Pakistan Navy Shooting Range withdrawing his letter dated 14-10-2009.
(iii) Arms and Ammunition not required case property shall be returned to the applicant.
(iv) Sessions Judge Malir is directed to hold enquiry as to why, when bail was granted on 9-10- 2009, on the same date order for release of travel documents was obtained from another Judicial Magistrate. Sessions Judge is directed to look into all the aspects relating to the release of travel documents. He is directed to submit his report to this Court within two weeks.
(v) As far as question of quashment of proceedings is concerned, applicant is at liberty to move appropriate application before the trial Court D which application if moved shall be decided by the trial Court in accordance with the law.
(vi) Prosecution shall within next two months produce its evidence in the trial Court.
Cr. Miscellaneous application is disposed of in above terms.