P L D 1988 Karachi 633 (PLP)

NAIMUDDIN, C.J.‑‑ This application under section 498 Cr.P.C. read with section‑ 5(6) of Suppression of Terrorist Activities (Special Courts) Act, 1975 has been brought at the instance of Imran Ali Buledi who is facing trial for an offence under section 5, Explosive Substances Act vide FIR No.45/1987 lodged at Police Station Manghopir Karachi on 4‑6‑1987. The prosecution case is that when on 2nd June, 1987 ASI Mohammad Aslam alongwith Head Constable Mohammad Ashraf (HC/9377) and Head Constable Makhandad (HC/3690) including the Police party, were busy in checking at Hub River Road, opposite Machka Police Check Post, the illicit arms, narcotics etc. they found one car Toyota No.241‑102 of white colour coming from Hub Chowki, Province of Baluchistan at about 20‑30 hours. The Police party intercepted the said car. The applicant abovenamed alongwith co‑accused Abdullah Jan, Noor Mohammad, Mohammad Raheem, Mohammad Alam and Maqbool were found sitting in the car. Upon the personal search of the occupants of the car made by ASI Mohammad Alam one pistol of .25 bore loaded with magazine was recovered from right side folds of the Shalwar of applicant Imran Ali Buledi and a magazine of six bullets from right side pocket of his shirt. Likewise, one pistol of .30 bore without number, loaded with the magazine of 7 bullets was recovered from the person of co‑accused Abdullah Jan, besides magazine of 7 bullets alongwith 10 bullets was also recovered from the pocket of his shirt. Nothing incriminating was, however, recovered from the personal search of the other occupants of the car. The search of the car ‑was also made which led to the recovery of five bottle type bombs from beneath the rear seat of the car. The recovered bottle type bombs were sent to the Expert. The report of the Expert Pir Mohammad, Platoon Commandar Bomb Disposal Platoon disclosed that they contained high explosive TNT/AMATOL charged with delay composition. The operating method is full percussion type. This type of hand grenade is used by Army against enemies. One grenade was destroyed while testing. The Expert further recommended that it was not advisable to store grenades as they were dangerous and that they should be demolished as soon as possible. After obtaining requisite sanction for prosecution in respect of applicant Imran Ali Buledi aria co‑accused Abdullah Jan, the case was presented before the Special Court of Sind, Karachi, set up under the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter called 1975 Act,) as the offence being one specified in the Schedule of the Act. An application for bail was moved on behalf of the applicant before the Special Court who has dismissed it by order dated 4‑5‑1988. I Hence this bail application. We have heard Mr. Mohammad Hayat Junejo, learned counsel for the applicant and Mr. Mohammad Ilyas Khan, learned counsel for the State. The learned counsel for the applicant made the following submissions before us:‑

1. That the car from which the grenades were recovered did not belong to the applicant /accused nor it was taken on rent, by him. The owner of the car did not even know the name of the applicant/ accused.

2. The bombs were not recovered from the possession of the Applicant nor he produced them from his pocket or person and hence the provisions of section 5 of the Explosive Substances Act, 1908 (hereinafter referred to as "Act VI of 1908") are not attracted to this case.

3. That six persons were jointly occupying the car from which the bombs were allegedly recovered, of which four have been let off by the police at its own and hence the applicant has a strong case for being enlarged on bail.

4. That it is a matter of further enquiry as to which of the six occupants of the car was in possession and had actual control of the bombs. The mere fact that the applicant was one of the occupants of the car cannot be made a reasonable ground to believe that he had in his possession or under his control the bombs recovered from beneath the rear seat of the car.

5. In support of his contentions the learned counsel for the applicant cited the following authorities:‑ (i) The State v. Nazi Pervez Iqbal and others PLD 1978 SC 64. (ii) The State v. Pervez Siddiqui and 5 others 1987 P Cr. L J 1668. (iii) Nazir Hussain v. The State 1971 SCMR

404. Mr. Muhammad Ilyas Khan, learned counsel appearing for the State, on the other hand,, vehemently opposed the bail application and has contended that the applicant was driving the car and hence it can in all fairness be presumed that he had‑ the knowledge that the highly explosive bombs were hidden in the car. Besides, fire‑arms and ammunition were also recovered from his possession as well as from the possession of the co‑accused Abdullah Jan son of Abdul Haleem. We have carefully considered the contentions of the learned counsel. According to the prosecution the applicant and one Abdullah were found to be in possession of 5 bottle grenades and, therefore, they were sent up before the Court while the remaining four were found innocent, and, therefore, they were let off. The applicant was himself driving the car in question, which was intercepted bye Investigating Agency and it is not the case of the applicant that hey was a driver/carrier of the car. The grenades were highly explosive and were hidden and there is no evidence at this stage that the car' did not belong to the applicant or that it was hired by someone else. In these days the arms ammunition are usually transported in a vehicle, which stand in the name of some other person. It is obviously so done with a view to destroy the definite evidence about the ownership of the vehicle. However, looking to the circumstances of the case, it cannot be said at this stage that there are no reasonable grounds to believe that the applicant was not in actual possession and control of the grenades in question. As far as the decisions relied upon by the learned counsel for the applicant are concerned, presently suffice it to say that they are either distinguishable on their own facts or have no application to the facts of the present case. In the case of 'State v. Qazi Pervez Iqbal PLD 1978 SC 64; the explosives were found from a room of which the accused was in occupation as' s mere licensee and hence it was held as under: "As a licence passes no interest Kazi Pervez's permission to Samiuddin did not confer on Samiuddin any right whatsoever to goods which did not belong to him, therefore, he was neither in possession nor in control of the cardboard box, and, in my humble opinion, his conviction is based on an erroneous view of the liability of bare licensees under the law. " The applicant /accused was acquitted. As far as the decision in the case of the State v. Pervez Siddiqi and 5 others 1987 P Cr. L J 1668 is concerned, it may be noted that since there were contradictions in the evidence of recovery witnesses and there was no evidence as to who was the owner of the car and when the same was acquired by accused, the accused were acquitted. In the case of Nazir Hussain vs The State 1971 SCMR 404 the case of the prosecution was that on seeing the Sutlej Rangers the passengers, who were sitting in car got down from the car and ran away, while taxi driver was arrested. The search of the taxi led to the discovery of four seers of Charas. In the Supreme Court, their Lordships were pleased to hold that taxi was occupied by two passengers and it was vacated on signal being given by raiding party to stop, there was no evidence to show that the driver was associated with smugglers or was aware of such passengers being the smuggler and, therefore, he was acquitted. With utmost respect, the above decisions, as already observed, are distinguishable and do not have a direct bearing on the facts of the case in hand inasmuch as in the first case the accused was only a licensee of the room .wherefrom the explosives were recovered, while in the second case, the evidence of two Mashirs was contradictory and there was no evidence to show as to who was the owner of the car and when was the car acquired by the accused, while in the third case, the accused was a taxi driver and it was an admitted position that the two passengers, who were occupying the rear 'seat had run away and that there was no evidence that the taxi driver was an associate of the smugglers or that he was aware that his passengers were smugglers carrying Charas or some other contraband item. In the case of Bakht Awar and another v. The State 1985 SCMR 1460, it was held by their Lordships of the Supreme Court that: "We would add that as not less than 28 Kilograms of Chars concealed in the outdoors of the vehicle, which meant that each door had 14 kilograms of Charas concealed in it, which doors the Petitioners mite getting in and out of the car must a open circumstances tend closing and, therefore, by the circumstances of tie case it is impossible to believe that they would not have knowledge about the presence of the prohibited goods being concealed therein. We are satisfied that not only did they hive the guilty knowledge but were associates in the crime. " and therefore, the petition to Leave was dismissed. The possession and transport of grenades from Baluchistan to Karachi cannotex facie be for any benevolent purposes. In view of the above discussion, we are of the considered view that it cannot be said at this stage that there are no reasonable grounds to believe that the applicant had not committed the offend with which he is charged. The offence is heinous one and the case,, has not yet proceeded. It is thus not the stage when we are expected to make any detailed inquiry into the facts of the case or the impact of certain alleged lacunae or shortcomings committed during the investigation of the case. No case for bail is, therefore, made out and the application is accordingly dismissed. M.Y.H./I‑56/K Bail refused.