' HASAN FEROZ, J.---This order will dispose of above mentioned six Bail Applications filed on behalf of applicant/ accused (1) Junaid Ghafoor son of Abdul Ghafoor in F.I.R. No,199/2014 (2) Wahid Baldish son of Noor Ullah in F.I.R. No,196/2014 (3) Barkat Ali son of Azmat Khan in P.I.R. No,197/2014 (4)
Fateh Muhammad son of Sultan Muhammad F.I.R. No, 198/2014 (5) Siraj Ahmed son of Haji Gul in F.I.R. No, 200/2014 (6) Abdul Qayum son of Abdul Ghafoor in F.I.R. No, 201/2014, under section 23-A(i)
' Date of hearing: 10th June, 2014 of Sindh Arms Act, Police Station Zaman Town. The applications of present applicants/accused have been refused vide order dated 23-5-2014 passed by the Ist Additional Sessions Judge Karachi, East.
2. The brief facts as cited in F.I.R. Are that five different F.I.R. Bearing No,199/2014, 196/2014, 197/2014, 198/ 2014, 200/2014 and 201/2014 were instituted against the applicants named in separate bail applications by Zaman Town Police Station under section 23-A(I) of the Sindh Arms Act, wherein from personal search of applicant/accused Junaid Ghafoor police has recovered .30 bore pistol without number, six bullets and two mobile phone black colour.
3. From the personal search of applicant/accused Wahid Bakhsh son of Noor Ullah one Close Butt Kalashnikov No, S-5617163036 loaded magazine 25 bullets and another small magazine with 15 bullets without licence and two mobile Nokia phones and one printed pillow cover in brown color containing 45 live bullets of 7 MM Rifle in hand were recovered.
4. From the personal search of applicant/ accused Barkat Ali son of Azmat Khan in F.I.R. No, 197/2014 one 30 bore pistol with loaded magazine with 7 bullets from the fold of Shalwar and mobile Nokia phone black colour were recovered.
5. From the personal search of applicant/accused Fateh Muhammad son of Sultan Muhammad in F.I.R. No, 198/2014 .30 bore pistol, loaded magazine with 7 bullets and two black colour Nokia mobiles phones were recovered.
6. From the personal search of applicant/ accused Siraj Ahmed son of Haji Gul one pistol .30 bore without number without licence along with loaded magazine with 6 bullets hanged in fold of shalwar was recovered.
7. From the personal search of applicant/accused Abdul Qayum son of Abdul Ghafoor one pistol .30 bore without number and without licence along with loaded magazine with 5 bullets from the fold of shalwar was recovered.
8. I have heard Mr. Samiullah Soomro Advocate and Mr. Khawaja Naveed Ahmed Advocate for applicants.
9. Learned counsel for accused has contended that the applicant/accused belongs to a respectable family has been involved due to police enmity who were taken into illegal custody on 5-5-2014 by plain cloth police personnel who came in police mobile at House No, 80/2, Khybane- Shahbaz VI, DHA Karachi. This fact has been immediately informed to Darakhshan Police Station on 5-5-2014 through an application which is on record of Police Station Darakhshan where after on 7- 5-2014 the applicant/accused has been shown to be arrested in the aforesaid crime through a joint mashirnama illegally and unlawfully. Learned counsel has strongly contended that the applicant/accused in Criminal Bail Application No, 897/2014 is student of IIIrd year; Bachelor of Engineering in Electrical Department of Quid-e-Awam University of Engineering Science and Technology Nawabshah Sindh, who came to Karachi in connection with his studies who is also currently undergoing examination in the University and his nonappearance in examination may cause irreparable loss to his education career, he has been implicated in the alleged 30 bore pistol although he was taken into custody by plain cloth police personnel on 5-5-2014 who has been shown to have been later on arrested at Zaman Town Police Station on 7-5-2014 in the afore dated offence. I have on the previous date of hearing called SHO/Duty Officer of Police Station Darakhshan and also the Controller of Examination Quaid-e-Awam University, to ascertain the veracity of the application made on behalf of accused to Police Station Darakhshan on 5-5- 2014. Today A.S.-I. Muhammad Ramzan concerned Duty Officer of Police Station Darakhshan has appeared and brought the original application dated 5-5-2014, which bears the endorsement inward No,409/CC of Police Station Darakhshan at the reverse of said application dated 5-5-2014 which is reproduced as under and is to be seen viz-aviz joint mashirnama and F.I.R., which is in juxta position to prosecution version.
"To ' The Station House Officer Police Station Darakhshan Karachi Sir ' It is submitted that I am manager of Al-fareed Coach Service. Today in morning at about 0400 hours three police mobile had come to the banglow of my employer and conducted search and took away my employer children and servants. After receiving information I reached at the home and found it close so I went to Police Station Darakhshan and informed to the Duty Officer who accompanied with me to the Banglow No, 80/II Khayaban-eShahbaz and inquired from a guard of nearby banglow. I jumped over the main gate and opened it and got the banglow inspected by the duty officer who written the names of the children and asked, to search them. Now at 04-00 pm nothing is known about them therefore I am a writing a complaint to SHO Sahab that a complaint be lodged about missing of the children. The children names are as following: Siraj son of Haji Gul Muhammad Fatah Muhammad son of Haji Sultan Barkat son of Haji Azmat Shahzaib son of Dasti Khan Qayum son of Abdul Ghafoor (servant)
Wahid son of Karim Bakhsh (servant)
Junaid son of Abdul Ghafoor (friend)
Applicant Shahid Rizwan son of Muhammad Ashraf ' Manager al-fareed Coach Service Old Sabzi Mandi Karachi 03218037533 03223597875 Sd/- 5-5-2014"
10. On notice the Controller of Examination of Quaid-e-Awam University is also present who has been called at the request of learned counsel for accused in order to ascertain the veracity of contention of applicant/accused that he is student. The Controller of Examination Mr. Nazir Ahmed Durrani has vouched for applicant/ accused Junaid Ghafoor is regular student of B.E III year and his examination are in progress.
11. Mr. Samiullah Soomro, learned counsel for the applicants/accused has strongly contended that it is a case of foisting of Arm wherein from inception doubt stretches over the case inasmuch as the applicant/accused has earlier been taken into illegal custody by plain cloth police personnel whereafter F.I.R. Dated 7-5-2014 was lodged and joint mashirnama of recovery has been framed.
12. Learned counsel for the applicant/accused contended that the recovery shown to be effected from the applicant/accused through joint mashirnama with other accused persons is a blatant misuse of authority by the police as earlier in point of time on 5-5-2014 it has been intimated to the Police Station Darakhshan that the applicant/accused along with others has been whisked away by plain cloth police men in police mobile however, later on it transpired that the accused persons namely Junaid Ghafoor, Wahid Bakhsh, Barkat Ali, Fateh Muhammad, Siraj Ahmed and Abdul Qayum were implicated in false case and from them foisted recoveries were shown as Junaid Ghafoor 30 bore pistol without number along with six bullets, applicant/accused Wahid Bakhsh one Close Butt Kalashnikov loaded magazine 25 bullets and another small magazine with 15 bullets without licence and one printed pillow cover in brown colour containing 45 live bullets of 7 MM Rifle, applicant/ accused Barkat Ali .30 bore pistol with loaded magazine with 7 bullets, applicant/ accused Fateh Muhammad .30 bore pistol loaded magazine with 7 bullets, applicant/ accused Siraj Ahmed .30 bore pistol without number without licence along with loaded magazine with 6 bullets, applicant/ accused Abdul Qayum .30 bore pistol without number and without licence along with loaded magazine with 5 bullets.
13. Learned A.P.-G. Has strongly opposed the bail application on the ground that the applicants arrested were preparing for illegal act by definite design of carrying the arms in their hands and they were arrested with arms and ammunition and as such their case false under the prohibitory clause to section 23-A as against this Mr. Khawaja Naveed Ahmed contended that the case under section 23-A Sindh Arms Act is devoid of force of law as in order to constitute offence unless the aim to use the un-licensed or a licensed weapon for unlawful purpose or to facilitate any person to use unlawfully comes out no case is made out. Whereas it is yet to be determined during trial whether the case falls under section 23-A or 24 of the Sindh Arms Act, which brings the case out of the purview of prohibitory clause. Reliance has been placed on 2014 YLR 1372 (Inayat Ali v. The State).
14. I have in my consideration that accused Junaid Ghafoor is student whose veracity with regard to regular student of Bachelor of Engineering in Electrical Department had been vouched by the.
Controller that he is undergoing examination of B.E. IIIrd year.
15. I have also in my consideration that the manner of recovery from all the other applicants is shrouded under doubt being based on joint mashirnama of recovery. Since two days before arrest of the applicants/accused by plain cloth police personnel was intimated to the Police Station Darakhshan on 5-5-2014 and the A.S.-I. Muhammad Ramzan of Police Station Darakhshan present before this Court produced the said application with the endorsement at reverse of the inward No, 409/CC dated 5-5-2014 gives dent to the prosecution story and thus gives room for further inquiry into the guilt of applicant/accused inasmuch as the arrest having been made earlier on 5-5-2014 by police and thereafter recovery shown on 7-5-2014 through joint mashirnama on which date the F.I.R. Has been lodged against the applicants/accused, not only brings the case of the applicants/accused under doubt at this stage of tentative assessment so also further inquiry in a case falling within the prohibitory clause emerges which is to be considered on broad principle of law that each case has to be seen through its own facts and circumstances and as there emerges grounds that the accused might not have committed the offence and there are apparent grounds of further inquiry under section 497(2), Cr.P.C. In absence of mens rea; the Actus Reus has not precipitated at this stage. I, therefore, grant bail to each of the applicants/accused in the sum of Rs,100,000 (Rupees One Lac) and P.R bond in the like amount to the satisfaction of the Nazir of this Court.
' The observations made in the order being of tentative nature would not come in the way of trial.