' AZIZ-UR-RAHMAN, J.---Through instant bail application, the applicant Arbab s/o Samano seeks post arrest bail in Crime No.84/2013 under section 23-A of Sindh Arms Act, 2013 [SINDH ACT NO.V OF 2013] inter alia on the plea that the offence alleged does not fall within the ambit of prohibitory clause of section 497, Cr.P.C.
2. The case of the prosecution as s t up in the F.I.R. Reads as under:- "It is to complain on behalf of t e State that today, we along with staff each HC/34I Ghulam abi Korai, PC/316 Mazhar Ali Ansari, PC/1765 Loung Kha Solangi and driver PC/483 Ghulam Sarwar Khaskheli left Po ice Station vide entry No.10 dated 16-7-2013 at 1200 hours in patrolling vehicle No. SP-7041 for patrolling in the area. After iatrolling at different places, when reached at Hafiz Sulemanl Mori on Pabjo link Road, received spy information that the absconder accused namely Arbab Rahu and Ghulam Nabi Kori of Crime No.83 of 2013 under sections 324, 353, 402, 398, 399, P.P.C. Are standing at sugarcane crop on southern side of Chobandi on Pabjo to Kazi Ahmed road along with weapons used in the offence for going to somewhere. On such infor ation, we along with staff reached at pointed place at 1500 ours, saw and identified that each 1. Arbab Rahu with repeat r and 2. Ghulam Nabi Kori were standing at road side who n seeing police mobile, tried to flee away. We immediately topped the vehicle, alighted along with staff with strategy by giving hakals to the accused encircled and apprehended them with weapons. The repeater was taken into custody from the erson having it and inquired from him name etc, who disclose his name Arbab s/o Samano by caste Rahu Rio village Ada Rahu, Taluka Kazi Ahmed.
Another person disclosed his n e Ghulam Nabi s/o Sher Muhammad, by caste Kori r/o FC Chowk Sadiqabad and his personal search conducted an from his personal search, recovered one 30 bore pistol alon with magazine from left side fold of his shalwar and two no es of Rs.100/- total Rs.200/- from his side pocket. The pistol as unloaded and found three live bullets of 30 bore in its magazine. From the personal search of Arbab Rahu, recovered one note of Rs.100/- from his pocket. The repeater taken from him was unloaded, which was empty. Due to non-availability of public mashirs, appointed HC Ghulam Nabi and PC Loung Khan as mashirs and inquired about licenses of weapons, who disclosed them unlicensed and told that last night, our companion offenders each Saleh Machhi, with Kalashankov,
2. Chanesar Machhi with 44 bore rifle and Ashique Kori with Kalashankov were with us, who have been killed in police encounter.
Being absconder accused in above case of Police Station Daulatpur and keeping unlicensed weapons, the apprehended accused persons were arrested according to section 23-A Sindh Arms Act and such mashirnama of arrest and recovery was prepared with the signatures of above mashirs. Then the arrested accused along with weapons brought at Police Station in custody. Against the accused Arbab Rahu, on behalf of the State, this case under section 23-A Sindh Arms Act is registered. Such separate case against the accused Ghulam Nabi Kori will be registered".
' Details of recovered weapons and money
1. Recovered from accused Arbab Rahu: One repeater 12 bore without number, in working condition, sealed 2. One note of Rs. 100/.
2. Recovered from accused Ghulam Nabi Kori: One pistol along with magainze, 30 bore, without number in working condition, sealed,
2. Two notes of Rs.100/- total Rs.200/-, three live bullets of 30 bore.
3. The applicant/accused viz. Arbab s/o Samano before approaching this court through the instant Cr. Bail Application, had earlier filed Cr. Bail Application No.809/2013 [Arbab s/o Samano v. The State] for grant of post arrest bail before the court of lInd: Additional Sessions Judge, Shaheed Benazirabad, which nonetheless was dismissed vide order dated 5-8-2013.
4. Mr. Ahsan Gul Dahri, learned counsel for the applicant/accused during the course of arguments vehemently submitted that the applicant is below the age of 25 years as such, the alleged offence does not fall within the ambit of prohibitory clause of section 497, Cr.P.C. If, read in juxtaposition of Provisions of the sections 8(1)(i), 23(2) of the Sindh Arms Act, 2013 [Sindh Act No.V of 2013].
5. Elaborating his arguments, learned counsel made reference to the provisions of section 23(2) of the Act, 2013 and forcefully contended that the alleged offence is punishable with imprisonment for a period which may extend to seven years[07 years] and with fine. Accordingly in such like cases, not covered under the prohibitory clause of section 497 Cr.P.C, grant of bail is a rule while refusal is an exception.
6. At this juncture, it would be advantageous to reproduce herein sections 3, 8(1)(i), 23(1)(a) and (2) of Sindh Arms Act, 2013 [Sindh Act No.V of 2013], which reads as follows:--
3. Licence for acquisition and possession of fire arms and ammunition.--(1) No person shall acquire, possess, or carry any firearm and ammunition unless a licence is issued to him in accordance with the provisions of this Act and the rules: Provided that a person may, without himself holding a licence, carry any firearm or ammunition in the presence, or under the written authority of the holder of the licence, for repair or for renewal of the licence or for use by such holder.
(2) The number of firearms to be allowed to any person, at any time, shall be in accordance with the rules so prescribed.
8. Prohibited of acquisition or possession, or sale or transfer of firearms to certain classes of persons.--(1) Notwithstanding any of the provisions of this Act, no person shall:--
(i) Who is below the age of twenty five years, or (ii)
(iii)
(iv) acquire, possess or carry any firearm or ammunition, sell or transfer any firearm or ammunition to, or convert, repair, or test any firearm or ammunition or, any other person whom he known, or has reason to believe:-
(i) to be prohibited from acquiring, possessing or carrying any firearm or ammunition, or
(ii) to be of unsound mind at the time of such sale or transfer, or-such conversion, repair or test;
(2) Notwithstanding anything contained in clause (i) of sub section (1), a person who has not attained the prescribed age may use, under prescribed conditions such firearms as may be recommended in the course of his training in the use of firearms.
23. Punishment for certain offences.---(1) Whoever:--
(a) acquires, possesses, carries or control any firearm or ammunition in infringement of section 3, shall be punishable with imprisonment for a term which may extend to fourteen years and with fine; (b)
(c)
(d)
(e)
(i)
(g)
(2) Whoever being a person to whom provisions of section 8 applies, acquires, possesses or carries any firearm or ammunition in contravention of that section shall be punishable with imprisonment for a term which may extend to seven years and with fine. [Underlining is mind
7. Apart from the above, Mr. Ahsan Gul Dahri, learned counsel for the applicant/accused, 'without prejudice' to his stand taken as above, further submitted that even otherwise, the alleged recovery from the applicant/accused is one empty repeater of 12 bore and one note of Rs.100/- [Rupees One Hundred only] thus, per learned counsel in terms of section 2(c) of the Sindh Arms Act, 2013 [Sindh Act No.V of 2013], the alleged repeater falls within the definition of 'lethal weapon'.
8. Under section 2(c) of the Sindh Arms Act, 2013 [Sindh Act No.V of 2013], it is worth to note that "arms" means articles, designed as weapons of offence or defence and includes rifles, pistols, revolvers, grenades, swords, bayonets, and other lethal weapon. It also includes machinery and its' parts for manufacturing arms. Articles designed solely for domestic or agricultural purposes and weapons incapable of being used otherwise that as toys or of being converted into serviceable weapons have been excluded under Section 2(c) of Sindh Arms Act, 2013.
9. Mr. Ahsan Gul Dahri, learned counsel for the applicant/accused while, continuing his arguments further urged that offence vis-a-vis possessing of arms, in terms of Section 24 of the Sindh Arms Act, 2013 is punishable with imprisonment for a period which may extends to 10 years and with fine.
10. Even otherwise, the cases which would not fall within the scope of section 8(1)(i) and section 23(2) of Sindh Arms Act, 2013 [Sindh Act No.V of 2013] nevertheless would fall within the ambit of section 24 of the Act, 2013. As the later is a beneficiary provision provides lesser punishment than that having been provided under section 23(1)(a) of the Act, 2013.
11. Section 24 of the Sindh Arms Act, 2013 [Sindh Act No.V of 2013] reads as follows:--
24. Punishment for possessing arms with intent to use for unlawful purposes.--Whoever possesses arms or ammunition licensed or unlicensed with the aim to use them for any unlawful purpose or to facilitate any other person to use them for any unlawful purpose shall, whether such unlawful purpose has been materialized or not, the licence holder, the user and the person who has no licence, be punishable with imprisonment for a term which may extend to ten years and with fine. [Underlining is mind
12. Besides, learned counsel argued that in fact the present accused is a victim of high handedness of police officials otherwise, the accused is a law abiding 'Cattle Trader' and does nothing with the alleged offence. Per learned counsel neither the accused was arrested by police as alleged nor anything has been recovered from his possession.
13. The contents of the Main 'F.I.R. No.83/2013' as well as entries of 'Roznamchas' and timings if seen and tallied with the contents of F.I.R. In question, then per learned counsel, both the F.I.Rs., besides false, fabricated are concocted. The complainant A.S.I. Sabir Hussain Gopang has not only acted as a complainant/inscriber of the F.I.Rs, but also as an investigating officer of the cases. The alleged recovery, learned counsel further contended, is neither from the exclusive nor physical and/or constructive possession of the applicant [Arbab Rahu s/o Samano]. Manifestly, the same has been foisted upon the applicant. The idea behind the story, as narrated in the aforementioned F.I.R., is nothing but only an attempt to justify the 'police encounter' in which three persons were killed.
14. Learned counsel further contended that F.I.R. No.84/2013 is 'off shoot' of F.I.R. No. 83/2013 lodged on 16-7-2013 under sections 398, 399, 402, 353 and 324, P.P.C. At Police Station Daulatpur, District Shaheed Benazirabad, amongst others against the present accused. Per narrated story of F.I.R.
No.83/2013 three persons have been killed in 'police encounter'. It is worth mentioning that bail has already been granted to the present applicant/accused in the Main F.I.R. No.83/2013.
15. Lastly, Mr. Dahri learned counsel submitted that the applicant is innocent, as such, deserves to be enlarged on bail. Otherwise, withholding of bail would amount to advance punishment which in any event neither promote the cause of justice nor object of law.
16. In contra, learned D.P.G. Conceded that the age of the applicant/accused has not been disclosed in the 'Mashirnama'. Nonetheless, the learned D.P.G. Seriously opposed the grant of bail to the applicant/accused, on the ground that the offence committed by the applicant/accused, is a non bailable offence. Further, learned D.P.G. Emphatically argued that by the promulgation of the new enactment i.e. Sindh Arms Act, 2013 [Sindh Act No.V of 2013], the legislators with a view to eliminate the misuse of Arms has made the offence punishable up to 14 years of imprisonment with fine under Section 23(1)(a) of the Act. Thus, per learned D.P.G. The offence committed by the applicant/accused herein falls within the prohibitory clause of section 497, Cr.P.C. Further, per learned D.P.G. Section 34 Sindh Arms Act, 2013 [Sindh Act No.V of 2013] renders section 103, Cr.P.C. As inapplicable. While, concluding his arguments, learned D.P.G. Prayed for rejection of the bail application of the present applicant/accused.
17. Heard and perused the record.
18. From perusal of record, the case of the present applicant/accused undoubtedly seems a case of further inquiry, as all the witnesses are police officials. Keeping in view the 'police encounter' which is a subject matter of Main F.I.R. No.83/2013, the police officials, beside hostile may be interested witnesses, under circumstances of the instant case. Neither the present accused is any more required for further investigation nor there is any likelihood of tampering the evidence of the prosecution case. Moreover, the applicant/accused is seemingly not a habitual offender and/or previous convict. Besides, the applicant/accused is behind the bar since his arrest, as such, his detention in prison without conviction indeed would serve no purpose.
19. Bail, it is settled principle of law, cannot be withheld as punishment much less where offence does not fall within the prohibitory clause of section 497, Cr.P.C. Grant of bail, indeed is a rule and refusal an exception. On this aspect of the matter, reference can be made to the case of TARIQUE BASHIR v. THE STATE [PLD 1995 SC 35] wherein the honourable apex Court has observed as follows:- "It is crystal clear that in bailable offences the grant of bail is a right and not favour, whereas in non-bailable offences the grant of bail is not a right but concession/grace. Section 497, Cr. P. C.
Divided non-bailable offences into two categories i.e. (i) offences punishable with death, imprisonment of life or imprisonment for ten years; and (ii) offences punishable with imprisonment for less than ten years. The principle to be deduced from this provision of law is that in non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception. So the bail will be declined only in extraordinary and exceptional cases, for example;
(a) Where there is likelihood of abscondence of the accused;
(b) Where there is apprehension of the accused tampering with the prosecution evidence;
(c) Where there is danger of the offence being repeated if the accused is released on bail and
(d) Where the accused is a previous convict'
20. In view of the foregoing discussion, perusal of the various provisions inter alia of sections 2(c), 8(1)(i), 23(2) and section 24 of Sindh Arms Act, 2013 [Sindh Act No.V of 2013], the alleged offence, if any, upon joint reading puts the same outside the scope of the prohibitory clause of section 497 Cr.P.C. Even otherwise, in the aforementioned scenario the applicant/accused is entitled for grant of bail.
21. Accordingly, the applicant is admitted to post arrest bail, however, subject to his furnishing solvent surety in the sum of Rs.100,000/- (Rupees One Hundred Thousands only) and P.R bond in the like amount to the satisfaction of the learned trial court.
' The Cr. Bail Application No.S-675 of 2013 stands disposed of.