1998 P Cr (PLP)

MUHAMMAD NASEEM CHAUDHRI, J.

F.I.R. No.194, dated -12-1997 stands registered at Police Station Akbari Gate, Lahore under section 3/4 of the Explosive Substances Act and section 285/286/188, Pakistan Penal Code at the instance of Abid Hussain, A.S.-I. with the allegation that in violation of the Prohibitory Order issued under section 144 of the Code of Criminal Procedure whereby manufacturing and sale of the Combustible items was banned; Muhammad Akram petitioner-accused was making sale of the items of Atishbazi when the raid was effected who made good his escape. Thereafter, the combustible items were taken into possession vide memo. prepared by the raiding. Police Officer who prepared the site plan. He sent the complaint and thereafter the aforesaid F.I.R. was drafted. Apprehending his arrest Muhammad Akram petitioner moved the first petition before the Court of competent jurisdiction for his admission to pre-arrest bail which was disposed of by the learned Additional Sessions Judge-1, Lahore/Special Judge under the Suppression of Terrorist Activities (Special Courts) Act, 1975 on the ground that no mala fides on the part of the police have been brought to the notice of the Court. 2. -This petitioner was not arrested who apprehending his arrest has filed this petition before this Court for his admission to pre-arrest bail and has been allowed the interim relief.

3. We have heard the learned counsel for the petitioner as well as the State Counsel and gone through the record before us. It has been argued by the learned counsel for the petitioner that it is not a case falling under section 3/4 of the Explosive Substances Act, 1908 and that at best it is a case prima facie falling under sections 285 and 286, Pakistan Penal Code which are bailable and for that reason the petitioner is entitled to be admitted to pre-arrest bail. ' On the contrary the contention of the learned counsel for the State is that due to the recovery of combustible items the petitioner is also liable under section 3/4 of the Explosive Substances Act, 1908. We hold the view that the recital of the F.I.R. have to steal the eminence for the proper disposal of the petition. A perusal of the F.I.R. has made out that the petitioner deals in combustible items used in Atishbazi and we can express that even the licence is issued for carrying on such a business. A perusal of the police file has made out that a copy of the restraint order said to have been issued by the competent Authority under section 144 of the Code of Criminal Procedure banning the manufacturing, displaying and selling of combustible items used in Atishbazi does not form part of the same. Without such an order the attraction of section 188, Pakistan Penal Code can be ignored even at this initial stage. Both the said sections 295 and 286, Pakistan Penal Code are bailable according to the relevant Schedule annexed with the Code of Criminal Procedure. We are in full agreement with the learned counsel for the petitioner who canvassed that it is not a case of prima facie attraction of sections 3/4 of the Explosive Substances Act, 1908. We would rather express that in view of the facts of the matter in hand it is a case wherein the attraction of the aforesaid section 3/4 of the Explosive Substances Act, 1908 is, in the eyes of law, simply unjustified. We would rather express and hold that the narration about the attraction of the aforesaid section 3/4 of the said Act is transgression on the part of the Police Officer who raided the shop of this petitioner and we quash the F.I.R. to the extent of the aforesaid charge under section 3/4 of the said Act.

4. The maximum punishment for an offence under section 188, Pakistan Penal Code is six months which otherwise is non-bailable, but we have already expressed that there is no material with the police file to justify the prima facie attraction of the same.

5. In bailable offences it is the right of an accused to be admitted to bail as contemplated under section 496 of the Code of Criminal Procedure. Further, in view of the quantum of maximum sentence of six months under section 188, Pakistan Penal Code the discretion in the matter can be exercised in favour of the petitioner in the circumstances narrated above

6. Finding it to be a fit case we accept this petition and confirm the interim pre-arrest bail allowed to Muhammad Akram petitioner. Consequently, he is admitted to pre-arrest bail in the sum of Rs.20,000 (Rupees twenty thousand only) with one surety in the like amount to the satisfaction of the learned Area Magistrate on the Executive side, Police Station Akbari Gate, Lahore. He shall submit the bail bond etc. within a period of seven days from today.

7. Copy Dasti. H.B.T./M-638/L Pre-arrest bail confirmed.