' ABDUL RASOOL MEMON, J.---The applicant Muhammad Roshan seeks post arrest bail in Crime No.58/2014, P.S. Ibrahim Haideri, Karachi under section 23(1)-A, Sindh Arms Act, 2013. The bail application on behalf of applicant was rejected by the 1st Additional Sessions Judge Malir vide order dated 06.6.2014.
2. The allegations against the present applicant are that on 04.3.2014 SIP Khursheed Ahmed of P.S. Ibrahim Hyderi apprehended the accused/applicant Muhammad Roshan behind Ali Akbar Shah Bukhari Graveyard and found him in possession of unlicensed 9MM Pistol Pak made with loaded magazine containing five live bullets and such FIR was registered against him.
3. Learned counsel for the applicant has argued that the trial court did not consider the factual as well as legal aspect of this case. Per contents of FIR there is no mention of preparation of mashirnama, even names of mashirs have not been mentioned; that the property has not been sealed at place of wardat though it was without number; that the FSL report shows that number was rubbed. This contradiction in between the version mentioned in the FIR and the F.S,L. Report creates shadow of doubt; that there is delay in sending the alleged weapon to ballistic expert for three days; that all the witnesses are police officials, therefore, there is no apprehension of tampering with the evidence; lastly it is contended by the learned counsel for the applicant that if the material collected by the prosecution produced at trial, the applicant will be able to create shadow of doubt upon the prosecution casal and benefit of doubt could be extended to accused even at bail stage. Reliance is placed on a case of Amanullah v. The State (PLD 1996 SC 241).
4. Learned counsel for the applicant further states that per contents of FIR accused/applicant is also involved in cases (1) FIR bearing No.01/2013 under section 302/109/34, P.P.C. (2) FIR No.100/2013 under sections 302/109/34, P.P.C. And (3) FIR No.185 of 2013 under sections 302/109/34, P.P.C. But in all these cases the applicant is on bail and he has produced copies of bail orders in above crimes.
He further submits that mere registration of other cases is no ground for refusal of bail until and unless it is brought on record that the applicant is convicted in any of the cases.
5. Learned Additional Prosecutor General has vehemently opposed the grant of bail on the ground that sufficient material is available on record connecting the applicant in the case which falls under the prohibitory clause of section 497, Cr.P.C. In support of his contention he has placed reliance on an unreported order of this court in a case of Shah Jehan v. The State in Criminal Bail Application No. 1413/2014. He further submits that other cases mentioned in the FIR are also registered against the applicant which shows that he is habitual criminal.
6. Heard the learned counsel for the applicant and learned Additional Prosecutor General and perused the record.
7. No doubt the punishment of recovery of illicit arms has been enhanced through new enactment Sindh Arms Act 2013 and the courts are required to be more careful in cases falling within the prohibitory clauses of section 497(1), Cr.P.C. However, in a situation where the case of further inquiry is made out in favour of accused then bail cannot be withheld as a matter of policy. In the instant 'case perusal of FIR reveals that there is no mention regarding preparation of mashirnama of arrest and recovery. Even the names of mashirs have not been mentioned in the FIR even it is not mentioned that the property which was recovered from the possession of the accused was carrying any mark of identification and has been shown as without number but even though the property was not sealed at wardat. The F.S.L. Report shows that rubbing number has been shown therein. Prosecution witnesses are police officials, therefore, there is no apprehension of tampering with the evidence. The accused is behind the bars since last 07 months, so far as the FIRs registered against the present applicant, the applicant has produced certified copies of the orders in Sessions Case Nos.265/2014, 267/2014 and 268/2014 in the court of 2nd Additional Sessions Judge Malir wherein he has already been released on bail and no further case has been pointed out by the learned Prosecutor General pending against the present applicant. Moreover, mere registration of other cases against the accused is not sufficient to hold any person as hard, dangerous and desperate criminal until or unless it is brought on record that he has been convicted in any of the cases.
8. In view of the above circumstances, the applicant is able to make out a case of further inquiry and creating shadow of doubt and its benefit could be extended to the accused even at bail stage.
In a case of Amanullah v. The State (PLD 1996 SC 241) the Hon'ble Supreme Court has held that where the doubt creates regarding the participation of accused in the commission of the crime, it is better to keep accused on bail rather to keep him in jail. In view of the above circumstances the applicant is admitted to bail subject to furnishing solvent surety in the sum of Rs.100,000 (Rupees one lac. Only) to the satisfaction of the trial Court.
9. The case law relied by the learned Additional Prosecutor General has no relevancy with the facts and circumstances of this case.
10. Needless to say that the above observations made hereinabove are tentative in nature and shall not touch merits of the case at trial.