1. The facts and law pertaining to both these Bail Applications are similar, hence we propose to dispose them of through this common order. Briefly the case of the prosecution in Criminal Bail Application No,518 of 2001 (Crime No,63/2001 of Police Station Miro Khan) is that on receiving spy information regarding presence of unlicensed weapons in some quantity at the house of one Atta Hussain Khokhar on 2-7-2001, the complainant on behalf of the State, A.S.-I. Baddaruddin Burrio of Police Station Miro Khan alongwith his subordinate entourage and in company of Assistant Mukhtiarkar Miro Khan left his Police Station in police mobile for pointed place. The complainant party conducted raid at the pointed place when two persons finding themselves surrounded tried to escape from the scene alongwith their weapons, who were warned to surrender as the premises were encircled by the police and ultimately they were apprehended by the police. In the meanwhile P.C. Bashir Ahmed and P.C.
2. Ghulam Sarwar were appointed to act as Mashirs. On enquiry one of them having K.K. Loaded with a magazine disclosed himself to be Atta Hussain Khokhar the present applicant and the other having K.K. Loaded with a magazine containing 13 live bullets disclosed himself to be Shafqat Hussain Khokhar. They were enquired about the licences of their respective K.Ks. Who disclosed the same to be unlicensed. It is further the case of prosecution that another person was also found sleeping on the cot, who was awakened. On enquiry he disclosed himself to be Imdad Hussain s/o Muhammad Khan Khokhar resident of Shahpur. On search of the cot, the police party recovered two single barrel guns and seven '12 bore live cartridges. He a:so disclosed the same to be unlicensed. Thereafter such Mashirnama duly signed by the above two Revenue Officers was prepared and a case under section 13-D of Arms Ordinance was registered against the applicant herein and separate cases against other two accused were lodged. Based on the same facts as Crime No,62 of 2001, a separate F.I.R. Bearing No,63 of 2001 of the same Police Station was registered against Shafqat Hussain Khokhar for possession of an unlicensed K.K.
3. Which is the subject-matter of Criminal Bail Application No,519 of 2001. A bail after arrest application was moved on behalf of applicants before the trail Court which was rejected giving rise to the present application. Learned counsel for the applicants has mainly contended that the alleged weapons have been foisted upon the applicants at the instance of a local Zamindar. Further that there is a flagrant violation of section 103, Cr.P.C. By not associating any respectable independent person to act as a Mashir while prior spy information was received by the police. Consequently the case calls for further enquiry as the prosecution has foisted the alleged weapons upon the applicants. In support of his contentions learned counsel has relied on an' unreported order in the case of Javed Ali v. The State (Criminal Bail No,53 of 1997) of this Court at Circuit Court, Larkana and following case-laws:
(1) State v. Bashir (PLD 1997 SC 408).
(2) Sardar Khan v. State (1999 MLD page 1918).
(3) Imdad Ali v. The State 2001 YLR 1848.
4. The learned A.A.-G. Has opposed the grant of bail on the basis that per well-settled law, police witnesses are as good as any others in the absence of mala fides which has not been alleged by the applicants. We have heard learned counsel as well as the learned A.A.-G. And our conclusions are as follows: Admittedly there is a violation of section 103, Cr.P.C. As an independent witness was not associated with the recovery although spy information was received by the police much before they conducted the raid and there was sufficient time available to do the needful. It would also be seen that the recovery was made from the house of the applicants located in a village. Consequently it cannot be said that private witnesses were not available. So also by and large the superior Courts have deprecated the role of the complainant and Investigating Officer being one and the same person. The learned counsel appearing for the applicant has also brought to our attention several orders passed by a Division Bench of this Court where in identical matters bail has been granted.
5. We are of the opinion therefore that this is a matter of further inquiry.
6. The above are the reasons for our short order passed on 10-11-2001 granting bail to the applicants.