RAJA SAEED AKRAM KHAN, J. --- The supra titled appeal, with the leave of the Court, has been filed to assail the order passed by the High Court on 12.3.2012, whereby the revision petition filed by the appellant herein. was dismissed.
2. The gist of the facts forming the background of this appeal is that on a report of Muhammad Shehzad Chaudhry, S.H.O., Police Station. Sehnsa, FIR. No, 217 of 2011 was registered under Section 13- A of Arms Ordinance, 1965, against the appellant, at Police Station, Sehnsa. The allegation levelled in the F.I.R. is that there was an information that the appellant is involved in illegal arms business.
On this, a raiding party was constituted under the supervision of the S.H.O/complainant and Abdul Razzaq, S.H.O., alongwith constables. They raided the house of the appellant in the result of which heavy ammunition was recovered and the appellant was Arrested After the registration of the case, the matter was investigated by the S.H.O. and a challan was submitted before the Court of competent jurisdiction. After submission of the challan the appellant moved an application for bail after arrest before the Trial Court on 6.1.2012. The application was dismissed by the Trial Court on 10.1.2012. After dismissal of the application, the appellant filed second application before the Additional Sessions Judge, Sehnsa on 13.1.2012 which was also dismissed on 31.1.2012. Against the aforesaid order of the Additional Sessions Judge, a revision petition was filed before the High Court on 18.2.2012, which also met the same fate and dismissed ride impugned order dated 12.3.2012 which is the subject-matter of this appeal.
3. Raja Sajjad Ahmed Khan, the learned counsel for the appellant, has submitted that a false case has been registered against the appellant just to show efficiency of the police. He urged that all the Courts below erred in law while not taking into consideration that the warrant under which the house was searched and alleged recovery has been effected was issued under Section 100, Cr.P.C. and under the law in pursuance of such wan ant raid cannot be conducted (made) for the recovery of any article. He urged that the warrant was issued on 16.12.2011 by the S.D.M., Sehnsa whereas admittedly the raid was conducted after four days after the issuance of warrant. He further urged that the Courts below also not examined the record minutely and ignored that neither any despatch number was entered on the warrant nor this warrant was dispatched from the office of S.D.M. He further submitted that to bring a case within the purview of prohibitory clause of Section 497, Cr.P.C.. Section 13-A of the Arms Ordinance was added, whereas this Section has not been adapted in Azad Jammu Kashmir. Section 13 of Arms Ordinance provides the punishment of several. The case does not fall under the prohibitory clause of Section 497, Cr RC . In such-like case, the bail is rule and refusal is exception. He lastly argued that while making the recovery of alleged arms, the provisions of Section 103, Cr.P.C., were not complied with which makes the case one of further inquiry. He has further argued that challan has already been presented in the Court and the appellant is no more required by the police for investigation.
4. On the other hand, Ch. Shaukat Aziz, the learned Additional Advocate-General, has strongly opposed the bail on the ground that all the Courts below have exercised the discretion in proper manner, therefore, no indulgence is warranted by this Court. He contended that the challan has already been submitted in the Court and the trial is likely to start in near future. When he was confronted about the insertion of Section 13-A, Arms Ordinance, which has not been adapted in Azad Jammu and Kashmir, he was unable to controvert the legal position. He contended that such huge quantity of arms was recovered which cannot be planted in absence of any material with the police.
5. We have heard the arguments of both the learned counsel at some length and also perused the record with their help. While adverting to the first argument of the learned counsel for the appellant that the issuance of warrant under Section 100. Cr.P.C., we have gone through Section 100, Cr.P.C.. which reads as under:--- "100. Search for persons wrongfully confined. If any Magistrate of the first class has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence. he may issue a search-warrant, and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper."
After going through the above-said provisions, it reveals that a search warrant under Section 100, Cr.P.C., can be issued for the recovery of person who is reported to be detained illegally. It is also not denied that the warrant in this case was procured on 16.12.20 1, whereas admittedly the search was made after four days of issuance of the said w arrant. No plausible explanation has been brought on the record as to why such delay was done. This makes the case one of further inquiry.
6. It is also on the record that while making the alleged recovery, no independent witness was associated whereas the requirement of Section 103, Cr.P.C. is that the presence of two respectable is necessary. The authenticity of the warrant and the recovery memo. has to be ;een at the trial state, after recording the evidence which is the job of Trial Court. A reference may he made to a case titled Faqir Muhammad v. The State [1998 P.Cr.L..J. 692] in which ii has been held as under:- -- The provisions of Section 103, Cr.P C. which requires recovery in the presence of two respectables from the locality is .applicable only when the recovery is made from a place. The provision does not apply When the recovery is made from the person in a street In another case titled Wazir v. The State [PLD 1996 Karachi 24t)] it has been observed as under:--- It is settled law that provision of search are not applicable to personal search.. Likewise provision of Section 103. Cr.P.C. is not attracted it' only a person who is inside of a place is searched. Presence of two respectable persons of locality shall be necessary when a place is sought to be searched
7. It is celebrated principle of law that while deciding a bail application only a bird-eye view has to be made and deeper appreciation 01' evidence is not warranted under law. The Court has only to see the allegations levelled in the F.I.R. and the material collected by the prosecution during the investigation: In the record available, the element of mala fide on the part of prosecution cannot be ruled out. The prima facie story of the prosecution seems to be doubtful. It is also consistent view of all the Superior Courts that if an element of doubt is there, that can be extended to the accused even at bail stage.
In view of above discussion and the material available on the record, it can safely be held that the case of the appellant clearly falls within the ambit of Section 497(2), Cr.P.C. for which sufficient grounds are available fin further inquiry into the guilt of the accused-appellant. The punishment t'or the offence with which the appellant is charged is seven years which does not fall wider the prohibitory clause of Section 497, Cr.P.C. In this regard reliance can be placed on a case reported as Sajid v. Wazir Hussain and another [2005 SCR 3021 in which it has been held as under:-- "The bail to an accused person can be refused on the ground that the matter is covered by bar contained in Section 497, Cr.P.C. which stipulates that if in the light of material collected by prosecution during investigation an accused person is connected with the commission of offence punishable with death or transportation for life he can be released on bail only in such matters if his case falls within the exceptions contained in the said provision otherwise concession of bail is to be refused. In the present case even if the case of prosecution is accepted as correct the appellant cannot be awarded punishment of death, transportation of life or punishment for 10 years of above Presently single injury is attributed to the appellant. Whether independent witnesses have been cited in the case or not is a question which need not be resolved at this stage by us. Keeping in view the seat of injury and the nature of injury whether Section 324, APC can be invoked or not is it question which can be resolved by the Trial Court after recording evidence of prosecution Till that time the application of this provision of law needs further inquiry. Therefore the Trial Court as well as the District Criminal Court had rightly allowed concession of bail to accused/appellant."
8. While considering a bail application, the Court has to look tentatively the facts and circumstances of the case The Court is not expected to probe deep into merits of the prosecution case as has been laid down in a titled Mukhtar Hussain and another [2005 SCR 29] wherein it has been observed as under:-- .... Before discussing the merits of the present case let us-make it clear that while considering a bail application, the Court has to look tentatively the facts and circumstances of the case. In order to ascertain whether reasonable grounds exist or not, the Court is not expected to probe deep into merits of the prosecution case rather it ascertains as to whether some tangible evidence is available against the accused which if left unattended may lead to inference of his guilt."
9. There is no general rule for grant of bail on the pound of further inquiry rather the scope of further inquiry in each case depends upon the facts and circumstances of that case. The provisions of sub-section (2) of Section 497, Cr.P.C., may attract in the cases of no evidence or the evidence direct or circumstantial is not confidence inspiring is not the standard to sustain conviction or there is no possibility of ultimate conviction on the basis of evidence brought on police file or the case is of doubtful nature and such other grounds which may be considered sufficient for further inquiry into the guilt of an accused.
10. The investigation against the appellant has been completed and the challan has already been submitted in the Hours, However, the trial is not in sight in near future. The appellant is no more required for further investigation. Keeping behind the bars for an indefinite period amounts to punish the accused without trial. The appellant is languishing in the jail since his arrest. The bail cannot be withheld as a punishment.
11. In the light of what has been discussed above, we accept this appeal, set aside the orders of the Courts below and order that the appellant shall be released on bail subject to furnishing a bail bond in the sum of Rs, 2,00,000/- with one surety in the like amount to the satisfaction of any Magistrate First Class, Sehnsa, if he is not required in any other case.
Before parting with the judgment, we may observe that the Trial Court will not be influenced by any observations made in this judgment which are tentative in nature and the ease shall be decided on its own merits.