SHAHNAWAZ TARIQ, J.---Through the captioned bail application, applicant Shan has agitated order dated 15-7-2014 passed by the learned Ist Additional Sessions Judge, East Karachi, whereby his earlier bail application was declined and sought his enlargement on post arrest bail.
2. Relevant facts as narrated in FIR are that on 4-7-2014, complainant A.S.I. Ali Nawaz along with his subordinate staff, was patrolling in the area. At 2000 hours, they reached at D-1 Bus Stop, Sector 23, K.I.A. Korangi, and noticed a suspicious person, who was walking. Complainant apprehended the suspected person and during his personal search recovered one .30 bore unlicensed pistol loaded with three bullets and cash of Rs,
80. The applicant was arrested on spot and FIR was lodged accordingly.
3. It is, inter alia, contended by the learned counsel for the applicant that applicant is innocent and has been falsely involved in the present case by the Police. The recovery of pistol and bullets has been foisted upon him and despite the availability of public, no independent person has been cited as witness while the alleged place of incident is a thickly populated area i,e, D-1 Bus Stop, Sector 23, K.I.A. Korangi.
4. He further contended that the alleged offence does not fall within the ambit of section 23 of the Act. After the completion of investigation, challan has been submitted before the concerned court, as such applicant is no more required for further investigation. The applicant has no previous criminal record, and even there is no likelihood of tampering with the prosecution evidence, as prosecution witnesses are police officials. The applicant is maintaining his entire family and due to his confinement in jail, entire family is suffering for their livelihood.
5. Conversely, learned A.P.G. For the State opposed the bail plea of the applicant and contended that applicant was arrested on the spot and one loaded pistol was recovered from his possession which is in working condition. He further submitted that the provisions of section 103, Cr.P.C. Are not applicable during a search made under Sindh Arms Act, 2013, therefore, applicant cannot take the benefit for non-association of private mashirs during the course of recovery. The offence committed by the applicant falls within prohibitory clause of section 497, Cr.P.C., therefore, the applicant does not deserve for the concession of bail.
6. I have heard the learned counsel for the applicant as well as A.P.G. For the Sate and scanned the available record meticulously.
7. Perusal of record reflects that applicant has been booked in the crime of un-licensed pistol loaded with three live bullets and was arrested from D-1 Bus Stop, Sector 23, Korangi, which is thickly populated area, and alleged recovery was made in presence of two police officials. The contention raised by the learned APG that under section 34 of Sindh Arms Act, police is not bound to associate the private persons as witnesses of recovery is not in consonance with theme and scope of section 34 of the Act, and one should not read the said section in isolation or partially but it must be read as a whole. The principles of natural justice and rule of law shall be observed at every stage and step, and the law cannot be used as a shield to deviate from following such principles. Therefore, the procedure requires for incorporating independent witnesses so that the principles of natural justice and rule of law are upheld and the discretionary use of the power by the government officials is avoided.
8. For the appropriate conclusion, section 34 of Sindh Arms Act, 2013, which deals with the arrest and search is reproduced as under:--
34. Arrest and searches. Except as otherwise provided in this Act--
(a) All arrest and searches made under this Act or under any rules be executed in line with the provisions of the Code of Criminal Procedure, 1898, except section 103 of the Code.
Provided that any police officer or person present on the spot can be witness of search and recovery.
(b) Any Person arrested and arms or ammunition seized under this Act, shall be delivered immediately to the officer in Charge of the nearest police station and that officer shall prosecute that person under this Act on behalf of State.
9. I would like to reproduce a significant letter issued by the Registrar, Hon'ble Supreme Court of Pakistan, Rawalpindi to meet such a situation, as under:-- "J.P. 32-R(S)/88-SCJ SUPREME COURT OF PAKISTAN RAWALPINDI, AUGUST 20, 1990.
From The Registrar, Supreme Court of Pakistan, Rawalpindi.
To,
(1) The Inspector General of Police, Punjab, Lahore.
(2) The Inspector General of Police, Sindh, Karachi.
(3) The Inspector General of Police, N.W.F.P, Peshawar.
(4) The Inspector General of Police, Balochistan, Quetta.
Subject:--WITNESSES OF RECOVERY IN CRIMINAL CASES.
Dear Sir, It has come to the notice of this Court that in a larger number of criminal cases, the witnesses of recovery are from the police force and that the Police Officers concerned when appearing before the Court are often unable to give satisfactory explanation, why they failed to associate witnesses of the public in a case where the raid/recovery was planned well in advance. This Court has, therefore, directed that the requirement of associating non-officials witnesses in such cases should be impressed upon all concerned.
(2) The Court has also directed in this context that the Courts should also examine two aspects of the issue in such cases. Is there a plausible explanation for not associating witnesses from the public; and whether some features of the cases in addition to the ocular account given by the Police Officials support the prosecution version when denied by the defence.
(3) It is suggested that the above orders of this Court should be brought to all concerned for strict compliance.
Sd/- (M.A. Latif)."
10. In the case of State v. Bashir and others, PLD 1997 SC 408, the Hon'ble Supreme Court while dealing with the provisions of section 103, Cr.P.C. 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 1997 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."
11. Provisions of the section 103, Cr.P.C. Are mandatory in nature and cannot be ignored without any proper justification. The prime object of the above provisions is to ensure the transparency and fairness on the part of police during the course of recovery, curb the false implication and minimize the scope of foisting of fake recovery upon the accused.
12. It is significant to mention that section 34 of Sindh Arms Act has not expressly excluded the provisions of section 103, Cr.P.C. But on the contrary, section 34 has provided a legal cover that police officials also can act as witnesses of recovery besides the private persons. The proviso to section 34 of Sindh Arms Act, provides that any police officer or person present on the spot can be witness of search and recovery, therefore, it was prime duty of the police to prefer a private witness if available at the spot to maintain transparency and fairness of the alleged recovery. It is the prime duty of Courts to ensure during the course of the administration of justice that there must be a plausible explanation for non-association of witnesses from public.
13. Adverting to the merits of the case in hand, no valid reason or plausible explanation has been furnished by the prosecution for non-association of independent witnesses by the police when independent people were available at the place of recovery which is a bus stop on main road situated in thickly populated industrial area. It is very strange that the complainant ASIP had neither any private person incorporated as a witness of the alleged recovery nor attempted or offered to the available public to act as mashir.
14. Moreover, the process of investigation has been completed and applicant is no more required for further investigation. The prosecution has also failed to provide any record showing that the accused was previously convicted or is involved in any other criminal case. The applicant is maintaining his entire family which is also suffering for their bread and butter due to his confinement.
15. In case of Jamal ud Din v. State, 2012 SCMR 573, the Hon'ble Supreme Court has observed as follows:-- "4. Without entering into the merits of the case, as the quantum of sentence has to be commensurate with the quantum of substance recovered, we doubt the petitioner can be awarded maximum sentence provided by the Statute. Needless to say that the Court while hearing, a petition for bail is not to keep in view the maximum sentence provided by the Statute but the one which is likely to be entailed in the facts and circumstances of the case, The fact that petitioner has been in jail for three months yet commencement of his trial let alone its conclusion is not in sight, would also tilt the scales of justice in favour of bail rather than jail."
16. It is well settled law that while considering the question of bail, Court may consider the aspect of minimum quantum of sentence provided for the alleged offence. In present crime one unlicensed pistol loaded with three live bullets was recovered from the possession of the applicant which falls within the definition of 'arms' ns provided in section 2 of the Act, which is punishable for ten years as envisaged in section 24 of the Sindh Arms Act, 2013.
17. As the sequel of the discussion of the circumstances supra, letter of Hon'ble Supreme Court and identical case law, I am of the considered view that the case of the applicant requires further inquiry, as envisaged under subsection (2) of section 497, Cr.P.C. Resultantly, applicant is admitted to bail subject to the furnishing solvent surety in the sum of Rs,50,000 (Rupees fifty thousands) with PR bond in the like amount to the satisfaction of the trial Court.
18. The observations made above are tentative in nature and the trial Court shall decide the subject case purely on its merits.