' MUHAMMAD TASNIM, J.---Applicant is booked in Crime No,272 of 2011, under section 13(e) of Arms Ordinance, Police Station CID, Sindh, Karachi. Applicant in the first place applied for bail before learned [IV] Addl. Sessions Judge, Karachi East, who dismissed the bail application per order dated 9-8-2011. Feeling aggrieved against the aforesaid order, present bail application has been filed.
2. The case of the prosecution as set out by the prosecution in the F.I.R. Is that complainant Waqar Ali Shah, lodged the F.I.R. And stated therein that today on 23-6-2011 Inspector Syed Waqar Ali Shah posted at CID/AEC interrogated arrested accused No,1 Muhammad Saleem alias Sultan alias Talban alias Jehadi son of Muhammad Rafique and Rizwan son of Liaquat All who are arrested in Crime No,268 of 2011 under sections 353/324/ 427/34, P. P.0 . And during investigation both accused confessed that there is explosive substance, police uniforms, arms and ammunition which are available in their godown situated at Zaman Town, Korangi No,4 and they can recover by going there. On pointation of . The above accused. Inspector Syed Waqar Ali Shah along with above accused and police party through government mobile went for recovery and on pointation of above accused stopped government mobile in the street of Ghafoor sweetwala and after walking ahead arrested accused entered in Bungalow No,C-70, Sector 35-A, near Tayyaba Masjid, Zaman Town No,4, Karachi where accused No,2 Rizwan Ali son of Liaquat Ali in presence of the witnesses Muhammad Ali son of Muhammad Hanif and HC Nazim Baig-3260 discovered one LMG, one. Riffle 222, one Repeater .12-bore with one hundred live bullets of . Kalashanikov under the cloth in Almirah lying in his room of above bungalow at 11-45 a.m. Which was sealed on the spot. The above act of Rizwan Ali son of Liaquat Ali falls under section 13(e) of Arms Ordinance.
3. Learned counsel for the applicant in support of this bail application has submitted that present applicant was firstly booked in Crime No, 268 of 2011 dated 23-7-2011 under sections 353/324/427/34, P.P.C. And on the same day another F.I.R. Under section 13-D of the Arms Ordinance was also registered. Learned counsel says that in Crime No,268 of 2011 applicant has been admitted to bail by the learned trial Court per order dated 27-7-2011. He says that applicant has also been admitted to bail in other case under section 13-D of the Arms Ordinance by the learned trial Court. Learned counsel says that applicant has been falsely implicated in this case and recovery as mentioned in the F.I.R. Has been foisted. He says that on the pointation nothing has been recovered. He says that the house from where the alleged recovery was effected does not belong to the applicant. He further says that provisions of section 103, Cr.P.C. Were not followed at the time of alleged recovery on the pointation of the applicant. According to learned Counsel only one private witness was shown to have associated and that too was not of the same vicinity from where alleged recovery was effected. Learned counsel further says that complainant, who has lodged the present F.I.R. Against the applicant had also lodged the earlier two F.I.Rs, against the applicant with mala fide intention. He says that complainant is bent upon to keep the applicant behind the bars, for this reason he has been falsely implicated in the case. Learned counsel says that entire alleged recovered ammunition has been foisted upon the applicant with mala fide intention: He further says that investigation has been completed and challan has been submitted.
The applicant is attending the Court in other two crimes and there is no likelihood of abscontion of the present applicant. Learned counsel further says that maximum punishment provided under the law for an offence under section 13(e) is life imprisonment but minimum punishment is 7 years. He further says that at the bail stage lower side of the punishment which is favourable to the applicant be taken into consideration. He says that since the applicant has already admitted to bail in above referred two crimes number, he may also be enlarged on bail in the present case as well. In support of his contention, learned Counsel has placed reliance in the case of State v. Bashir PLD 1997 SC 408.
4. On the other hand, learned Addl. Prosecutor-General has vehemently opposed the bail application and she submits that heavy amount of Ammunition, and automatic weapons, so also the bullets were recovered on the pointation of the applicant, which were sealed on the spot in the presence of the mushirs so also one private witness. She says that provisions of Article 40 of Qanun-e-Shahadat Order, 1984 are attracted in circumstances of the case. Learned Addl. P.G.
Further says that there is no malice on the part of the prosecution - against the present applicant.
She further submitted that complainant had apprehended the applicant and had lodged F.I.R.
No,268 of 2011. Since the applicant was having weapons with him, another F.I.R. Was lodged by him under section 13-D of the 'Arms Ordinance. She further submits that during interrogation, applicant confessed the possession of the weapons and other articles as mentioned in the F.I.R. And on his pointation recovery was effected in accordance with law, hence she says that, applicant is fully connected with the commission of offence and he may not be enlarged on bail.
5. I have heard the arguments of learned counsel for the parties and have perused the record.
6. From perusal of the record, it appears that originally applicant did not have the knowledge of present F.I.R. It came to his notice when applicant was admitted to bail in crime under section 13D of Arms Ordinance and in another Crime No,268 of 2011 under sections 353/324/ 427/34, P.P.C.
When present F.I.R. Was brought to the notice of the present applicant. It is also apparent from the reading of the record that the provisions of section 103, Cr.P.C. Were not followed in letter and spirit.
In the case of State v. Bashir PLD 1997 SC 408 the Hon'ble Supreme Court of Pakistan while dealing with the provision of section 103, Cr.P.C. With regard to presence of two independent witnesses of the locality has observed as under:-- "As regards the above second submission of Mr. M.M.Aqil, it may be observed that it has been repeatedly , held that the requirement of section 103, Cr.P.C. Namely, that two members of the public of the locality should be Mashirs to the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public. In this regard, it will suffice to refer to a recent Judgment of this Court in the case of Mushtaq Ahmed v. The State PLD 1996 SC 574. In the case in hand, SIP Muhammad Rafique has not been able to give any cogent explanation as to why he was unable to secure two Mashirs from the public."
7. It is admitted position that only one private witness was shown to have associated by the police but he was not belonging to the same vicinity from where alleged recovery was effected. This makes the recovery doubtful. If the lower side of the punishment is taken into consideration, it does not fall under prohibitory clause of section 497, Cr.P.C. It is yet to be determined as to whether recovered articles were foisted upon the applicant or same was recovered on his pointation. Once the position has been taken by the applicant that the house from where alleged recovery was effected does not belong to him, this aspect of the matter also requires evidence as to how applicant entered in the said house without seeking permission from anyone. In this case F.I.R. Is silent as to whether anybody was available in the house when the search was made, from where alleged recovery was effected in presence of one private witness. If there was anyone why he has not been associated as mushir of the recovery. F.I.R. Also does not say as to whether house was locked or it was opened by the police. All the aforesaid factors make the case of the prosecution doubtful, which requires further enquiry in terms of subsection (2) of section 497, Cr.P.C.
Accordingly, this bail application is allowed. Applicant is admitted to bail subject to his furnishing solvent surety in the sum of Rs,100,000 and P.R. Bond of like amount to the satisfaction of the learned trial Court.
8. In view of above this bail application stands disposed of along with the office objection.