2004 PLP 1562 (YLR)

Faiz Muhammad Qureshi for Applicant (in Cr. B.A. No.347 of 1998). S. Madad Ali Shah for Applicant (in Cr. B.A. No.395 of 1998). Ghulam Shabir Memon for the State. By this common order we would dispose of Criminal Bail Application No.347 of 1998 and Criminal Bail Application No.395 of 1998. Bail is sought by the applicants in respect of Crime No.85 of 1998 registered under sections 3/4 of Explosive Substances Act, 1908 read with sections 337‑F(i), 427 and 147, P.P.C. The case set up by the prosecution is that on 6‑6‑1998 on a call given by Jia Sindh Qaumi Mohaz Party in response to attack on their leader Bashir Ahmad Khan, workers of the, Jia Sindh Mohaz, came in response to the general strike call came but upon seeing the vehicle plying on the road they threw cracker on a bus bearing Registration No.PA‑0463 consequent to which glasses of the said .bus were damaged. Police personnel claim to have identified the applicants and some private persons also received simple injuries which were attended to at L.M.C.H. and were discharged on the same day. The learned counsel for the applicants at the very outset contend that there has been no sanction accorded by the Provincial Government under section 7 of the Explosive Substances Act, 1908 for prosecution o the applicants which would render the trial of the applicants without jurisdiction. It has further been contended that all the witnesses are police officials and there is no independent witness whatsoever. At best the material witnesses could have been the injured persons who have not been examined by the police in the process of investigation. No specific allegation of any overt act to any of the applicants has been attributed, in particular. Inasmuch as five accused were stated to be engaged in the commission of the crime out of which one of them is alleged to have thrown a cracker and therefore, at least four of them are not responsible to have thrown the said cracker. Now which of the four have not thrown the cracker is a matter of evidence at the stage of trial. For the moment the Court of the Special Judge is stated to be not invested with jurisdiction in absence of sanction under section 7 of the Explosive Substances Act, 1908 the learned counsel for the applicants places reliance Ihsanullah v. The State PLD 1995 Peshawar

106. On the other hand the learned State counsel contends that names of the applicants are mentioned in the F.I.R. and this is a fresh case, he however, concedes to the absence of the sanction under section 7 of the Explosive Substances Act, 1908. We have considered the sub missions made before us and we are of the view that nothing is available on the record to attribute to the applicants to be subverter or a saboteur even reports of Experts are not available on record to demonstrate that the damage caused to the glasses of the bus was in consequence of an explosive substance or some other material and whether the substance implied for causing such damage as is alleged in the F.I.R. was serviceable or not. All these aspects would render the case of the applicants to fall within the scope of further enquiry as contemplated by subsection (2) to section 497, Cr.P.C. We would therefore, admit both the applicants to bail upon their furnishing surety in the sum of Rs.50,000 each and P. R. Bond in the like amount to the satisfaction of the learned trial Court. H.B.T./G‑10/K Bail granted.