2025 PLP 934 (MLD)

Muhammad Tariq Afridi, J.

This order is directed to dispose of an application filed by petitioners (1). Inayat Ullah (2). Waliullah sons of Said Ghulam for their grant of post arrest bail in a case registered vide FIR No.05 dated 01.12.2024 under sections 5ESA, 7/11F (2) 11000 ATA of Police Station, CTD Abbottabad.

2. The allegations against the accused/petitioners are that on 19.12.2024 at 16:25 hours, the police, on prior information, regarding presence of terrorists of proscribed organization T.T.P (Fitna-al-Khawaraj) in Sharkot Forest, started search and strike operation (SNS) and found there four suspicious persons and police commanded them to stop, whereon two of them decamped, however, the police apprehend both the accused/petitioners with shoppers in their hands and upon search of blue colour shopper held by the accused/petitioner Wali Ullah, explosive substance weighing 3 kg, four non-electric detonators, 05 feet safety fuse wire, were recovered. The police also recovered from his possession one mobile black colour (China made) with a sim No.0348-1512556 and his original NIC. Similarly, the police, upon search of the accused/petitioner namely Inayat Ullah recovered from his side pocket a blue shopping bag containing five dynamites, four pamphlets of T.T.P (Proscribed organization) his original CNIC, one keypad mobile with inserted sim No.0344-9131291. In consequence of interrogation the accused/petitioners disclosed themselves to be active members of proscribed organization T.T.P and that they were to go to Shangla for handing over the explosive material to Commander Bukhtiar for terrorist activities. After completion of spot investigation this case was registered.

3. Arguments heard and record perused with valuable assistance of counsel for the accused/petitioners and learned AAG for the State.

4. Learned counsel for the accused/petitioners argued that the accused/petitioners have been falsely involved in the present case for departmental benefits and that recovery of five dynamites and pamphlets of T.T.P from side pocket of one of the accused/petitioner is impossible. Further contended that recovery of original NICs, the mode and manner of arrest of the accused, if seen in juxta position with site plan, creates a reasonable doubt in a prudent mind about involvement of the accused/petitioners in the present case.'

5. On the contrary, the learned AAG for the State argued that the accused/petitioners are directly charged in the FIR and recovery has been effected from their personal/immediate possession. Further contended that both the accused/petitioners have confessed their guilt before the Superintendent of Police, CTD, Abbottabad and that the offence with which the accused/petitioners are charged, is heinous in nature, falling within prohibitory clause of section 497, Cr.P.C and therefore, the accused/petitioners are not entitled to the concession of bail.

6. Allegedly, the accused/petitioners, being the members of proscribed organization (T.T.P) were arrested by the police and explosive material was recovered from their personal possession but no evidence has been collected against them during investigation showing that they had been involved in anti-state activities or that they happened to be members of the proscribed organization.

7. Admittedly the accused/petitioners were arrested on 19.12.2024 and their alleged confessional statements were recorded by Superintendent of Police, CTD, Abbottabad, on 23.12.2024 (after four days of their arrest). It is evident from the order of Judge-ATC, Hazara Division at Abbottabad dated 20.12.2024, that three-days police custody of both the accused was granted but on the expiry of period of remand, the IO/police instead of producing the accused /petitioners before the concerned Judge, for recording their confessional statements, produced them before the Superintendent of Police CTD, Abbottabad who recorded their confessional statements. Legally speaking the Police Officer/ Superintendent of Police CTD Abbottabad being a supervisory officer, cannot be considered as an independent and impartial person and therefore, the confessional statements of accused/petitioners recorded by a police officer before expiry of police custody cannot be used against them unless its voluntariness or admissibility is decided by the trial court.

8. Moreover, fact of decamping of co-accused from the spot and that too from a large contingent of police, (as shown in site plan) and also arrest of accused/petitioners wearing slippers (as evident from pictures produced by the police as evidence of arrest of accused/petitioners and recovery of explosive material) is sufficient to cast doubt about the authenticity of prosecution story narrated in the FIR.

9. Apart from the above, expert report is not available on record to confirm that the recovered material was the explosive substance. Furthermore, investigation in the instant case is complete and the accused/petitioners are no more required for further investigation.

10. Accordingly, the instant bail application is allowed and the accused/petitioners be released on bail provided they furnish bail bonds in the sum of Rs. 200,000/- each with two sureties each in the like amount to the satisfaction of learned trial Court, who shall ensure that the sureties are local, reliable and men of means. Observations recorded hereinabove are purely tentative in nature and should in no way prejudice an independent mind of learned trial Court during the course of trial. JK/42/P Bail granted.