' ABDUL MAALIK GADDI, J.---Through this application, the applicants seek post arrest bail in Crime No,22/2014 registered at Police Station B-Section, Tando Allahyar for offence under sectiosn 23(i) and 27 of Sindh Arms Act, 2013.
2. The relevant facts of the case as stated in the F.I.R. Lodged by complainant A.S.-I. Zaheer Ahmed Gaho of Police Station B-Section, Tando Allahyar on 19-6-2014 at 2000 hours are that on 19-6-2014, he alongwith his subordinate staff left Police Station for patrolling, when they reached Chambar Naka Chowk, they received spy information that shop keepers of Peshawar Armoury are selling unlicensed weapons i.e, guns and pistols and that many people are available on the said shop now to purchase the weapons. On this information, they proceeded to the pointed place and got stopped the vehicle at Peshawar Armoury shop and alighted from it and saw that VI the shop 8 people were present and in the middle one table of wooden was lying where repeaters, guns and pistols were lying on it, to whom they were checking. As soon as the police party reached the shop at 1700 hours from where 1. Abdul Malik Afridi Pathan,
2. Gul Malak Afridi Pathan,
3. Saeed Muhammad Afridi Pathan, all three sons of Amin Shah Afridi Pathan,
4. Abid Shah,
5. Afzal Shah and
6. Noor Talab went away from the shop while namely Darwesh Khan son of Noorullah Khan Afridi and Irshad Ali s/o Faheemuddin by caste Rajput remained there standing and in front of them two gunny bags (kattas) were lying in which weapons and cartridges of 12-bore were lying which were checked. From one gunny bag (katta) 8 repeaters of 12-bore numbers of which were rubbed and 5 pistols numbers of which were rubbed, were found and from second gunny bag (katta) different colours of 12-bore cartridges 600 live were lying. On enquiry for same, it was disclosed that the same were being sold to above named persons who had left the shop on their arrival. Apart from above inside the shop repeaters, guns, pistols and revolvers were lying. Police party demanded record for the said weapons but they could not produce the same nor gave any satisfactory reply, therefore, 93 repeater guns, 20 double barrel guns, one single barrel gun, 5 pistols and 600 cartridges were taken into possession by police, description of which is mentioned in the F.I.R. Apart from above, 8 repeater guns, 5 pistols and 600 cartridges were also taken in possession by police, description of which is also mentioned in the F.I.R. As this was the crime under sections 23(i) and 27 of Sindh Arms Act, 2013, therefore, at the shop available accused Darwesh Khan Afridi Pathan and Irshad Ali Rajput (present applicants) were arrested for the said offence and their bodies were searched but during search nothing was recovered and thereafter without numbers pistols and repeater guns were sealed separately. The public persons were asked to become mashirs but they did not come, thereafter such mashirnama of arrest and recovery as prepared in presence of mashirs PC Ali Ahmed and PC Ghulam Mustafa at 1900 hours. Thereafter, the arrested accused and property were brought at police station where such F.I.R. Was registered.
3. Heard learned counsel for the applicants/accused, learned D.D.P.P. For the State and perused the material available on record.
4. Learned counsel for the applicants has argued that applicants are innocent and have been falsely implicated in the present case by police due to ulterior motive. He further submitted that as per police papers, admittedly the prosecution case is of two versions as one furnished by present complainant A.S.-I. Zaheer, whereby he alleged that he himself made alleged recovery while other version is furnished by high-ups of Police of Ranks of SSPs, whereby it has been alleged that Hyderabad Police and Tando Allahyar Police jointly conducted raid at the Armoury shops, whereby accused were arrested and huge quantity of arms were recovered from licensed and authorized shop of applicant No,1 and in view of two versions of prosecution, it is a case of further inquiry as contemplated under the provisions of section 497, Cr.P.C. As it is yet to be proved that which of two versions is correct and believable. He has further submitted that applicant No,1 is licenced holder who sells the arms and ammunitions. Such copies are available at Pages 97 and 99 of this case file. He further submits that these pages were verified through Section Officer (Arms), for Secretary to Government of Sindh, Home Department, Karachi, who vide his report dated 25-7-2014, shows that applicant No,1 is an authorized dealer of arms and ammunitions with the name and style as "Messrs Peshawar Armoury, Arms and Ammunition Dealer, Chamber Naka Tando Allahyar". He has further argued that in this matter, although the police party were having advance information about the availability of alleged illegal weapons in the shop of applicant No,1 but yet no private mashir was associated with them to witness the arrest and recovery of the accused as such according to him, on this ground false implication of the applicants/accused cannot be ruled out.
He has further submitted that as per the F.I.R., the accused Abidullah, Muhammad Afzal Shah and Noor Talab having same role were available at the time of incident but their names have been placed in Column No,2 of the challan, therefore, on this ground also the case of applicants/ accused requires further probe. He lastly contended that challan against the applicants/accused has already been submitted and they are no more required for investigation and all the witnesses in this case are police officials therefore, there is no likelihood of tampering with the prosecution evidence, therefore, learned counsel for the applicants/ accused while relying upon some unreported orders passed by this Court dated 7-8-2013 in Cr.B.A.No,S-615/2013 (Re-Shahzeb v. The State), 30-10-2013 in Cr.B.A.No,S-974/2013 (Re-Atif v., The State), 30-1-2014 in Cr. B. A. No, S-1134/2013 (Re-Nazeer Ahined v. The State) and 4-7-2014 in Cr.B.A.No,S-320/2014 (Re-Zahid Ali Shah v. The State), has prayed for grant of bail.
5. Learned D.D.P.P. In view of the above said facts and legal position, has not opposed this bail application.
6. I have given careful consideration to the arguments of learned counsel for the applicants and gone through the relevant papers on record.
7. Admittedly, the alleged offence took place in a thickly populated area and as per the police papers, it appears that police had advance information about the availability of present applicants as well as alleged weapons in the shop named as "Peshawar Armoury" situated in Chambar Naka Tando Allahyar, yet the police did not associate with them any independent person of the locality to witness the arrest and recovery. No doubt the police officials are good witnesses as other but where the entire prosecution case depends upon sole evidence of police officials, their evidence require deep scrutiny at the trial.
8. It has also been revealed from the record that co-accused Abidullah. Muhammad Afzal Shah and Noor Talab though were available inside the shop at the time of incident but their names were placed in Column No,2 of the challan without assigning any cogent reason, therefore, on this ground also the case of applicants requires further inquiry. Moreover, no criminal history of the applicants has been brought on record in respect of the conduct of present applicants that they were ever involved in such type of cases prior to this. The accused are behind the bars since 19-6- 2014. Challan against them has already been submitted and they are no more required for investigation. All the witnesses are police officials, therefore, no question does arise for tampering with the evidence.
9. It is contended by learned counsel for the applicants that they are licence holders to sell the arms and ammunitions and in this regard he has also placed on record Forms X and XII, showing that they are authorized dealers to sell the arms and ammunitions, which are available at Pages 93, 97 and 99 of the case file. These documents were also verified at the request of learned State Counsel through Section Officer (Arms), for Secretary to Government of Sindh, Home Department Karachi, who vide his letter dated 25-7-2014, reported that applicant No,1 Irshad Ali son of Faheemuddin is an authorized dealer of arms and ammunition. For the sake of convenience, said report is reproduced hereunder:-- "I am directed to refer to your letter No,APG(Hyd)/62/2014 on the subject noted above and to state that the Mr. Irshad Ali son of Faheemuddin is an authorized arms dealer of arms and ammunition dealer with the name and style as "Messrs Peshawar Armoury, Arms and Ammunition Dealer, Chainber Naka Tando Allahyar". As per record of this department his arms dealership licenses on Form-X, Form-XII and Repairing Permit are issued in accordance with law, rules and policy."
10. On query, learned D.D.P.P. Has conceded that in this matter, the complainant who is eye-witness of the incident has also conducted investigation, therefore, tentatively on this ground also the false implication of the applicants at this stage of the case cannot be ruled out.
11. Accordingly, the application in hand is allowed and the applicants are granted bail subject to their furnishing solvent surety in the sum of Rs,300,000 (Three lac) each and P.R. Bonds in the like amount to the satisfaction of the trial Court.
12. Before parting with this order, I would like to make it clear that observations made herein above are tentative in nature and shall not affect the merits of the case.