2012 PLP 410 (MLD)

FAZL-I-HAQ ABBASI, J.

Shah Zaman son of Sheraz seeks bail in case F.I.R. No.579 dated 11-7-2011 registered at Police Station Badaber under sections 13 AO read with section 5 of the Explosive Substances Act.

2. The fact in brief are that Fazle Wahid Inspector S.H.O. sent Murasila stating therein that he received information that Arif alias Abuzar accused in case F.I.R. No.107 dated 2-2-2011 under sections 302/ 324/120-B etc. registered at Police Station Badaber was present in the Hujra of one Fazal Amin situated in village Tela Band. On this information he along with Salim Khan, Qayum Khan, Sher Afzal Khan Sub-Inspectors and the other police contingent raided the Hujra of Fazal Amin where he found Wahid son of Muhammad Din and Shah Zaman son of Sheraz present. On the cot he found (1) HMG 81165/AB 75 loaded with 180 rounds (2) PRG 7170421 along with 3 rounds of Rocket Launchers, (3) LMG PR 3507 loaded with 45 cartridges (4) SMG XR 1480 loaded with 20 live rounds (5) SMG 2515444 loaded with 20 live rounds, Rifle 303 Bore No.3815 and two Hand Grenades lying on a cot. The aforesaid two persons present at the spot could not give any plausible explanation for their presence while Arif alias Abuzar was found absent. The above named two persons were arrested in the case and Murasila was sent to P.S. for registration of the case as such the aforementioned case F.I.R. was registered.

3. Learned counsel for the accused-petitioner argued that despite prior information no public witness was associated. He further argued that the aforesaid articles were not recovered from the actual physical possession of the accused-petitioner and that the recovered articles were not sent to the fire arms expert to ascertain as to whether the same were in working condition. He further contended that the accused was not involved in any criminal case previously and that there are material contradictions in between the statement of prosecution witnesses recorded under section 161, Cr.P.C. as compared to the F.I.R.

4. On the other hand the learned counsel for the State argue that a huge quantity of Arms and Ammunitions was recovered and that the offences with which the accused is charged falls within the prohibitory clause of section 497 Cr.P.C.

5. Arguments heard and file perused.

6. Perusal of the record reveals that no public witness of the locality as required under section 103, Cr.P.C. was associated with the recovery proceedings. The so-called Arms and Ammunition recovered by the complainant were not sent to the expert to ascertain as to whether the same were in working condition and were operatable. According to the prosecution's own version the articles mentioned above were recovered from the Hujra of Fazal Amin. Neither he was made an accused nor a witness and that the articles were found lying on a cot as such the case of accused becomes one of further inquiry. Moreover, consent sanction of the Provincial Government for prosecution of the case as required under section 7 of Explosive Substances Act has not been obtained so far. In this view of the matter this application is allowed. The accused-petitioner be released on bail subject to furnishing bail bonds in the sum of Rs.2 lac with two sureties each in the like amount to the satisfaction of the Illaqa/Judicial Magistrate. H.B.T./248/P Bail granted.