1989 P Cr (PLP)

This will dispose of Criminal Miscellaneous Nos. 4348 and 4349 of 1988 by Aftab Gul petitioner in two cases, one under sections 5 and 6 of the Explosive Substances Act, 1908 and the other under section 14 of the Arms Ordinance, 1965.

2. On 24‑7‑1983, a police party searched the house of the petitioner situate at 2/6 Farid Kot Road Lahore and found in a locked room two SA.M. missiles, their spare parts and 65 missed cartridges of rifle. At the time of the search, I petitioner's parents, Maj. (Retd.) Mufti Nazar Muhammad and his wife, were living in the house.

3. It should be mentioned here that both cases are pending in the Court of the Special Judge, constituted under the Suppression of Terrorist Activities (Special Courts) Ordinance, 1975. The Presiding Officer has retired from service and his successor‑in‑office has not yet been appointed. Hence this, petition to this Court.

4. It is common ground between the prosecution and the petitioner that at the date of the recovery viz. 24‑7‑1983, the petitioner was not in Pakistan; in fact, he had left Pakistan on 20‑6‑1983 and was at the date of the search in England. He was tried in absentia by the Military Court under Martial Law Regulation No.31 and was convicted and sentenced. Learned counsel for the petitioner, however, refers to the President's Order, dated the 7th December, 1988, remitting the sentences of all persons who stand convicted and sentenced under Martial Law Regulation No.31 in absentia.

5. As regards the cases pending in the special Court, it is stated that proceedings under sections 87 and 88 of the Code of Criminal Procedure were taken but it was argued by the learned counsel for the petitioner that those proceedings have no effect, for the petitioner had left Pakistan before the alleged search of his house and had no knowledge of the proceedings against him. It appears that the warrant of arrest, which the Court might have issued against him, was not served upon him at his address in England.

6. Learned counsel for the petitioner maintains that the house from which missiles and cartridges etc. were allegedly recovered was not in the possession of the petitioner at the time of the search; that in any case the house was not in his exclusive possession and that as the search was conducted in the absence of the petitioner he cannot be said to have committed an offence under section 5 of the Explosive Substances Act, 1908. For his contention learned counsel refers to State v. Qazi Pervez Iqbal P L D 1978 SC 64 where it was held that the word `possession' refers to actual possession with guilty knowledge that the article possessed is an incriminating article, and not constructive possession. In the precedent case the explosive substance was recovered from a room shared by three persons and there was no evidence to prove as to which of them had brought the incriminating substance in the room and who was aware of it. It was held that the prosecution‑had failed to prove its case.

7. On my inquiry as to what other evidence there is to connect the petitioner with the incriminating articles learned A.A: G. says that two persons named Riaz Shahid and Anwar Ali had made statements before a Magistrate on 12‑9‑1983 under section 164 of the Code of Criminal Procedure saying that the petitioner had procured the articles for terrorist activities. Learned A.A.‑G., however, conceded that Riaz Shahid and Anwar Ali are neither the accused nor P.Ws. in this case. It also appears that there is no evidence that anybody had seen the petitioner placing the incriminating articles in the house. The house from where the articles were recovered, it is stated, belonged to the petitioner's father. It is said that the petitioner has been an activist of Pakistan People's Party. He was closely associated with the murder trial of Mr. Zulfiqar Ali Bhutto, Chairman of the Pakistan People's Party. It was for this reason that he has been falsely roped in the case'. Learned A.A.‑G. referred to Ziaul Haq v. The State P L D 1984 SC 192 and argued that the petitioner has not alleged any mala fides against the police and, therefore, he is not entitled to pre‑arrest bail. The case against the petitioner has already been investigated by the police and it is now pending in Court. I wonder, therefore, if it was necessary for the petitioner to allege mala fides against the police. In the circumstances of the case, and in view of the evidence which the prosecution proposes to lead against the petitioner. I am of the view that a prima facie case for the grant of pre‑arrest bail is made out. The petitioner's interim bail is confirmed. S.A./A‑583/L Interim anticipatory bail confirmed.