1990 PLP 1174 (MLD)

TANZIL UR-REHMAN, J.

These are two applications for bail under section 497, Cr.P.C. moved by applicants/accused Hussain Bux Shoro and of Muhammad Hasan Shoro and Jaji son of Miandad Shoro. The brief facts of this case are that the two accused/applicants named above were arrested on 19-2-1989 in Crime No. 18 of 1989 registered at Hatri P. S. under Section 379, P. P. C. During the said investigation on 3-3-1989 the said accused/applicants offered the S. H. O. of the same police station to point out the stolen property. The police, thereon, recovered two boxes concealed at banana crop behind Jamali Petrol Pump, Hala Naka. It was found that the said property was iron trunks which were duly sealed and locked. Following words in white colour were written on the box, "81-MM-MOR-SMK-B-6/P-MR1 1988 WT., 6 MORTAR BOMBS 81-MM, SMK". The said boxes were taken into possession by the police. Mashirnama was prepared and the accused/applicants were also challaned under section 4 of the Explosive Substance Act, 1908. The accused/applicants were sent up for trial before the Special Court of Suppression of Terrorist Activities (Provincial). An application for bail was moved by the applicants which was rejected by the learned Special Court by his order dated 23rd August, 1989 with the following observations:- "I have already stated above that the case has not so far proceeded and there is nothing on record from which a conclusion can be drawn that there are reasonable grounds for believing that accused is not guilty of scheduled offence. Therefore, when the D.C. has not even shown that reasonable grounds do exist for release on bail of accused, I do not find a tit case for bail and reject the application. I, however, direct prosecution to take all steps to ensure that case proceeds as early as possible." For granting bail under section 497, Cr.P.C. it has been time and again held by the superior Courts that the accused shall not be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years. We may also refer to Section 5(6) of the Suppression of Terrorist Activities Act, 1975 which reads as under:- "(6) An accused person shall not be released on bail by a Special Court, or by any other Court, if there appear reasonable grounds for believing that he has been guilty of a scheduled offence; nor shall an accused person be so released unless the prosecution has been given notice to show cause why he should not be released." A bare reading of section 4 of the Explosive Substances Act, will show that person charged with the offence under section 4 is to be shown that he has done an act unlawfully, maliciously, with intent to cause by an explosive substance, an explosion in Pakistan of a nature likely to endanger life or to cause serious injury to property or has in his possession or under his control an explosive substance with intent by means thereof to endanger life or, cause; serious injury to property in Pakistan or to enable any other person by means thereof to endanger life or cause serious injury to property in Pakistan shall be punished with life imprisonment, irrespective of the fact whether the explosion has taken place or not, and has caused an injury or loss to the life or property or not. We have heard Mr. Qurban Ali Chohan, learned counsel for the applicants and Mr. S. Sarfraz Ahmed, learned A. A. G. Learned counsel for the applicants disputes the recovery of the two boxes and submits that the same have been foisted upon the accused. It is further submitted by him that there is six' days' delay in recording the F. I. R. by the police. Dealing first with the second submission of the learned counsel for the applicants, admittedly the recovery was made, as alleged by the prosecution, on 3-3-1989 and the F. I. Rs. Nos .31 and 32 of 1989 under the Explosives Substances Act were recorded on 9-3-1989. Mr. S. Sarfraz Ahmed, A. A. G. has not been able to satisfy us with any plausible explanation to the said delay particularly when the accused/applicants were in custody with the police since 19-2-1989 in F. I. R. No. 18 of 1989. The delay remains unexplained as there seems to be no impediment in the way of the police for recording the F. I. Rs. immediately on recovery of the alleged boxes. As regards the first submission of the learned counsel for the applicants, we will not go into the question whether the recovery was made or not and that the said two boxes have been foisted upon the applicants, because it is a question which principally is to be dealt with at the stage of trial and more so because a separate F. I. R. No. 18 of 1989 against both the applicants has been recorded by the police under section 371), P. P. C. However, there is one point which is agitating our mind in connection with grant or refusal of the bail to the applicants and that is the requirement of the section 4(b) of the Explosive Substances Act, 1908. The law requires that where there is possession or control of an explosive substance it should be coupled with the intention of endangering life or causing serious injury to E property. We asked the learned A. A. G. if there was any evidence recorded by the police during investigation under section 161, Cr.P.C. which, prima facie, shows on the part of the applicants/accused or, at least, a knowledge on the part of the applicants that the boxes contained the explosive substance. There is none. The evidence recorded by the police is of the three drivers and two Guards but that is about the stealing of the property as "Sarkari Saman". They even do not mention the contents of the property. There is no word abut the intention of causing loss of life or property or knowledge of the contents of the boxes of the accused at the time of the' alleged commission of theft of the trunks. The evidence recorded by the police, prima facie, may make out a case under section 379, P. P. C. but we arc definite in our view that it does not meet the requirement as provided under subsection (b) of section 4 of the Explosive Substances Act, 1908. Therefore, we have no doubt in our mind that there appears no reasonable ground for believing that the applicants/accused have been guilty of the offence punishable with death or imprisonment for life or imprisonment for ten years. The boxes were found intact and sealed at the time of recovery and it has not been even alleged by the prosecution that the accused knew English or are able to read the words imprinted on the boxes. The case called for further inquiry. For the aforesaid reasons, we grant the bail to the applicants/accused in the sum of Rs. 50,000 with P. R. bond in the like amount, to the satisfaction of the Additional Registrar of this Court. Before parting with this case, we would, however, like to observe that the above observations relating to the Explosive Substances Act are of tentative nature for the purpose of those bail applications only, and will be ignored by the trial Court at the time of the trial. M.B.A./H-214/K Bail granted.