BAIL ORDER 23(1) A S.A.A.2013 (recovery of KALASHNIKOV)
THE HIGH COURT OF SINDH AT KARACHI
Cr. Bail Application No.843 of 2014.
Mohammad Nabi
v/s
The State
Before: MR. JUSTICE AMER RAZA NAQVI.
Date of heading: 04.07.2014.
Applicant: Through Mr. Noor Mohammad Advocate
for the Applicant.
Respondent: Through Mr. Saleem Akhtar, Addl. P.G.
O R D E R
AMER RAZA NAQVI J.:- Applicant has sought bail in F.I.R No. 10/2014 U/S 23(1)A of Sindh Arms Act, lodged at P.S. Saeedabad.
2. In the said F.I.R allegedly one kilashankov, number of which is mentioned in the F.I.R was recovered from him. F.I.R says that 1010 gms charas was also recovered. Learned counsel pointed out that two other cases were registered in this respect, one for possessing narcotics and other for assault on public servant. Learned counsel also submits that there is 8 days delay for sending the weapon to the ballistic expert. Learned counsel submits that delay in sending the weapon to the Expert is normally treated as a ground in bail application. He further says that section 42-b of the Sindh Arms Act provides that arm not in working condition does not come within the ambit of Arms Act. He further says that independent witnesses from the locality were not taken and no justification has been provided for not taking such witnesses. Learned counsel has also relied on the cases of Muhammad Rafique v. The State reported as 1997 SCMR 412, 2012 SCMR 1137, Ali Sher and others v. The State (2008 SCMR 707), Syed Afzal Ali v. The State, 2009 MLD 674, Ghulam Yaseen v. The State reported as 2013 YLR 1256 while referring various portions of above authorities, learned counsel submits that when bail has been granted in main case it is normally treated good ground for considering subsequent application in connecting matter. Learned counsel submits that in 1997 SCMR 412 it was held that involvement of accused in a number of cases of robbery was not sufficient to deprive him from his liberty.
3. On the other hand learned Additional Prosecutor General says that law and order situation prevailing in the city is such that bail should not be granted in these offences. Learned counsel for State says that the case referred by the counsel for the applicant in which the delay was considered was a murder case and situation in a murder case and in a simple recovery is different. According to learned Additional Prosecutor General Sindh in the murder case delay is material as weapon is used in another offence and therefore doubt regarding connection between weapon and empty is material in such cases. Learned Addl. P.G says that accused is involved in number of cases and he has previous history of being criminal.
4. In reply learned counsel for the applicant states that applicant has not been convicted in any case and he has already been acquitted in four cases. According to learned Addl. P.G since the punishment in the case is 14 years, therefore, applicant otherwise is not entitled for concession of bail as in the other two cases referred as main cases by the applicant, the punishment was less. So far as the requirement of private witnesses, learned Additional P.G. says that it is not a requirement in the Arms Act as 103 has expressly been excluded from the applicability of such section in arms cases. Learned counsel for the State further says that weapon involved is an automatic weapon and is more dangerous than ordinary weapon.
5. I have heard both the learned counsel and perused the record with their assistance. It is not disputed that in the other two cases in respect of the same incident the applicant has been granted bail and there is delay of 8 days in sending the weapon to the Expert. Applicant has not been convicted in any of the previous cases.
6. No doubt the crimes are rising in Society. We are facing extra ordinary situation in the City where innocent people are affected every day. The law and order situation is deteriorating day by day but the question is that while dealing with the liberty of people and their rights can such consideration influence the minds of the Courts and can the orders be passed under influence of such situation when at the same time it is the duty of the Courts to safeguard the liberty of individual people and their fundamental rights. To curb the deterioration in the law and order situation and rise of the crime is responsibility of the organs of the State. It is obvious that persons involved in the most heinous crimes could not be detected by the law enforcement agencies and even when the persons are arrested and put to trial, during trail the claims of prosecution normally are not proved. Deteriorating law and order situation would not mean that any person, who is arrested should be used as deterrence irrespective of the material which existed at the time of his arrest. In such situation prevailing law and order situation in the Society cannot be used as a pretext to deprive the people of their fundamental rights, such situation in my humble view would not improve the law and order situation but create further chaos in the Society, which ultimately may result in further rise of the crime. When citizens are already at the mercy of terrorists, the citizen should not be further burdened with the fear that they can be arrested just to create the deterrence for the criminals, who are not being apprehended. Previous such attempts and curtailing the rights of the bail to the accused through Legislation as well could not bear fruits and such laws compromising the liberties could not improve law and order situation. Learned Additional Prosecutor General has referred two cases i.e. 1991 P.Cr.L.J 1856 Karachi and 1990 MLD 2004 in support of his contention that each case of bail should be decided on its own merits. So far as the bail is concerned each case has its own distinguishable aspects. In my humble view also each case in bail matters should be treated on its own merits and when any recovery is to be made, this recovery should be transparent because such recovery can affect constitutional rights of each individual, therefore, in the above circumstances, I am not inclined to be influenced by the situation in the Society while dealing with the liberty of an individual and protection of his fundamental rights.
7. In view of above situation when applicant has already been granted bail in the main cases, he has been acquitted in four cases registered against him and has not so far been convicted in any of the case registered against him, having a history of many cases would not go against him, furthermore keeping in view of the trends of our Society registration of false cases on account of enmity or on account of relevant authorities being not happy with the particular person cannot be ruled out.
8. In view of above, I am inclined to grant bail to the applicant as he has made out a case of further inquiry. Accordingly, bail is granted to the applicant subject to furnishing solvent surety in the sum of Rs.75,000/= with PR bond in the like amount to the satisfaction of learned trial Court.
Judge
THE HIGH COURT OF SINDH AT KARACHI
Cr. Bail Application No.843 of 2014.
Mohammad Nabi
v/s
The State
Before: MR. JUSTICE AMER RAZA NAQVI.
Date of heading: 04.07.2014.
Applicant: Through Mr. Noor Mohammad Advocate
for the Applicant.
Respondent: Through Mr. Saleem Akhtar, Addl. P.G.
O R D E R
AMER RAZA NAQVI J.:- Applicant has sought bail in F.I.R No. 10/2014 U/S 23(1)A of Sindh Arms Act, lodged at P.S. Saeedabad.
2. In the said F.I.R allegedly one kilashankov, number of which is mentioned in the F.I.R was recovered from him. F.I.R says that 1010 gms charas was also recovered. Learned counsel pointed out that two other cases were registered in this respect, one for possessing narcotics and other for assault on public servant. Learned counsel also submits that there is 8 days delay for sending the weapon to the ballistic expert. Learned counsel submits that delay in sending the weapon to the Expert is normally treated as a ground in bail application. He further says that section 42-b of the Sindh Arms Act provides that arm not in working condition does not come within the ambit of Arms Act. He further says that independent witnesses from the locality were not taken and no justification has been provided for not taking such witnesses. Learned counsel has also relied on the cases of Muhammad Rafique v. The State reported as 1997 SCMR 412, 2012 SCMR 1137, Ali Sher and others v. The State (2008 SCMR 707), Syed Afzal Ali v. The State, 2009 MLD 674, Ghulam Yaseen v. The State reported as 2013 YLR 1256 while referring various portions of above authorities, learned counsel submits that when bail has been granted in main case it is normally treated good ground for considering subsequent application in connecting matter. Learned counsel submits that in 1997 SCMR 412 it was held that involvement of accused in a number of cases of robbery was not sufficient to deprive him from his liberty.
3. On the other hand learned Additional Prosecutor General says that law and order situation prevailing in the city is such that bail should not be granted in these offences. Learned counsel for State says that the case referred by the counsel for the applicant in which the delay was considered was a murder case and situation in a murder case and in a simple recovery is different. According to learned Additional Prosecutor General Sindh in the murder case delay is material as weapon is used in another offence and therefore doubt regarding connection between weapon and empty is material in such cases. Learned Addl. P.G says that accused is involved in number of cases and he has previous history of being criminal.
4. In reply learned counsel for the applicant states that applicant has not been convicted in any case and he has already been acquitted in four cases. According to learned Addl. P.G since the punishment in the case is 14 years, therefore, applicant otherwise is not entitled for concession of bail as in the other two cases referred as main cases by the applicant, the punishment was less. So far as the requirement of private witnesses, learned Additional P.G. says that it is not a requirement in the Arms Act as 103 has expressly been excluded from the applicability of such section in arms cases. Learned counsel for the State further says that weapon involved is an automatic weapon and is more dangerous than ordinary weapon.
5. I have heard both the learned counsel and perused the record with their assistance. It is not disputed that in the other two cases in respect of the same incident the applicant has been granted bail and there is delay of 8 days in sending the weapon to the Expert. Applicant has not been convicted in any of the previous cases.
6. No doubt the crimes are rising in Society. We are facing extra ordinary situation in the City where innocent people are affected every day. The law and order situation is deteriorating day by day but the question is that while dealing with the liberty of people and their rights can such consideration influence the minds of the Courts and can the orders be passed under influence of such situation when at the same time it is the duty of the Courts to safeguard the liberty of individual people and their fundamental rights. To curb the deterioration in the law and order situation and rise of the crime is responsibility of the organs of the State. It is obvious that persons involved in the most heinous crimes could not be detected by the law enforcement agencies and even when the persons are arrested and put to trial, during trail the claims of prosecution normally are not proved. Deteriorating law and order situation would not mean that any person, who is arrested should be used as deterrence irrespective of the material which existed at the time of his arrest. In such situation prevailing law and order situation in the Society cannot be used as a pretext to deprive the people of their fundamental rights, such situation in my humble view would not improve the law and order situation but create further chaos in the Society, which ultimately may result in further rise of the crime. When citizens are already at the mercy of terrorists, the citizen should not be further burdened with the fear that they can be arrested just to create the deterrence for the criminals, who are not being apprehended. Previous such attempts and curtailing the rights of the bail to the accused through Legislation as well could not bear fruits and such laws compromising the liberties could not improve law and order situation. Learned Additional Prosecutor General has referred two cases i.e. 1991 P.Cr.L.J 1856 Karachi and 1990 MLD 2004 in support of his contention that each case of bail should be decided on its own merits. So far as the bail is concerned each case has its own distinguishable aspects. In my humble view also each case in bail matters should be treated on its own merits and when any recovery is to be made, this recovery should be transparent because such recovery can affect constitutional rights of each individual, therefore, in the above circumstances, I am not inclined to be influenced by the situation in the Society while dealing with the liberty of an individual and protection of his fundamental rights.
7. In view of above situation when applicant has already been granted bail in the main cases, he has been acquitted in four cases registered against him and has not so far been convicted in any of the case registered against him, having a history of many cases would not go against him, furthermore keeping in view of the trends of our Society registration of false cases on account of enmity or on account of relevant authorities being not happy with the particular person cannot be ruled out.
8. In view of above, I am inclined to grant bail to the applicant as he has made out a case of further inquiry. Accordingly, bail is granted to the applicant subject to furnishing solvent surety in the sum of Rs.75,000/= with PR bond in the like amount to the satisfaction of learned trial Court.
Judge
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