1992 PLP 878 (MLD)

MUKHTAR AHMED JUNEJO, J.‑‑‑Applicant Jagdish Kumar who is facing trial in the Special Court for Suppression of Terrorist Activities at Karachi for an offence punishable under section 7(1) of the Arms Ordinance 1991. has moved for bail. The applicant was initially arrested on 27‑10‑1991, in the murder case registered under F.I.R. No. 145/91 of Police Station Ibrahim Hydri. The applicant was kept under detention in connection with investigation of said case till 10‑11‑1991. On 10‑11‑1991 F.I.R. No. 239/91 was registered against the applicant for offence under section 7(1)D of Arms Ordinance. On the same date a report under section 169 of Cr.P.C. was submitted before the concerned Magistrate exonerating the applicant of the murder charge. According to the F.I.R. No.239/91 of Police Station Ibrahim Hydri, the applicant gave information to the police on 9‑11‑1991 that he had buried one Klashnikov with a magazine containing 15 rounds at a place in Korangi Creek. Thereafter, the applicant led police to a place which was outside the boundry wall of Pan Farm in Korangi Creek. After removal of earth, a crickct kit bag was taken out from said place where it was being buried. The bag bore name of `Jugdesh‑K' and it contained a folding Klashnikov with its folding butt broken, from the left side of covering strip, and one magazine containing 15 live rounds wrapped in a white plastic cover. Applicant had no licence to possess the said arms and ammunition. Police recovered said articles under a mashirnama and registered fresh case against the applicant whose detention was continued. Mr. Shamandas S. Chhangani, learned counsel for the applicant argued that arrest of the applicant firstly in a murder case and then in the present case was mala fide and this was proved from the fact that a report under section 169 of Cr.P.C. was submitted in respect of the applicant in the murder case. It was next argued that the applicant belonged to Mithi, District Tharparkar and in all probability he would not have buried the Klashnikov and other articles in Korangi Creek. It was also argued that the recovery in question was not from exclusive custody of the applicant. Lastly it was argued that the applicant was victimized due to his political affiliation with a certain party. Mr. Syed Sarfaraz Ahmed, learned Additional Advocate‑General opposed the application‑on the ground that there was serious charge against the applicant about possessing an unlicensed Klashnikov and other incriminating articles. It was next argued that since the applicant was accused of a scheduled offence he had to make a strong case for being released on bail because he was presumed to be ad* offender in view of section 8 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereafter to be mentioned as the Act). Section 8 of the Act says that when any person accused of having committed a scheduled offence is found to be in possession of any article which is capable of being used for, or in connection with, the commission of said scheduled offence, he shall be presumed to have committed the offence, unless he can prove that he had not in fact committed the offence. Provisions relating to grant or‑refusal of bail to a person accused of a scheduled offence under the Act and being tried by a Court set up under the Act, are appearing in subsection (8) of section 5‑A of the Act. Said provisions nowhere refer to the provisions contained in section 8 of said Act. Even if application of the provisions contained in section 8 of the Act, is extended to the persons moving for bail in scheduled offences under the Act, the recovery of prohibitory weapons would raise presumption against them in the main case and not in the case under the Arms Ordinance which may be offshoot of the main case. One cannot ignore the fact that the applicant was kept in police custody for about 14 days on the allegation of being involved in a murder case, although he was innocent in that case as per final disposal of said case by police. The recovery in the present case has been effected from an open ground and there is force in the contention that the applicant cannot be held to be in exclusive custody of the Klashnikov and other material, allegedly recovered from him. This makes case against the applicant to be of further enquiry. Consequently the applicant is granted bail in sum of Rs.1,00,000 with P.R. Bond in the like amount to the satisfaction of Nazir of this Court. Before parting with this case, one cannot avoid expressing dis satisfaction with the manner in which the impugned order has been written. Learned Special Judge had passed a perfunctory order in which it is mentioned in a single line that the bail application was premature and hence it was rejected. It is unfortunate that the trial Court did not take the trouble of writing a speaking order with proper reasons for rejecting the bail application. Letters "L.D.C." and "L.S.P.P." have been used instead of writing the words "Learned defence counsel" or "Learned Special Public Prosecutor". This reflects badly on efficiency of the Special Judge who has authored such order. Copy of this para be sent to the Chief Secretary Government of Sindh and to the concerned Judge. N.H.Q./J‑138/K Bail allowed.