SHAMA KHEL and 2 others vs YOUSAF ALI KHAN and another

' GHULAM MOHYUDDIN MALIK, J.---Learned counsel for the parties present and heard. Recorded perused.

2. Petitioners seek their release on post-arrest bail in case F.I.R. No,39 dated 8-3-2008 registered under section 5 Explosive Substances Act read with section 13 A.O. At Police Station Khawaza Khela, District Swat.

3. The petitioners were reported upon to the local Police to be dangerous and hardened criminals.

So in order to nab them, the S.H.O. Of Police Station Khawaza Khela, raided their house, in the company of Police Party. He recovered huge arms and ammunitions of different type and caliber from a `Baitak' of a house, jointly owned and possessed by all family members. It is a fact on record that the Investigating Officer could not record statement of a single person showing that the above mentioned articles were exclusively owned and possessed by the petitioners. Moreover, he (Investigating Officer) in spite of spy information, raided the house without associating with himself two or more respectable inhabitants of the locality, to attend and witness the search and it is not the Prosecution case that the S.H.O. Issued an order to the locals but they did not obey the same.

Moreso, while making the recovery, the Investigating Officer did not prepare list of articles duly signed by him and the search witnesses, as required under subsections (2) of section 103, Cr.P.C.

Nor did he care to supply a copy of the recovered articles to the occupants of the place searched as envisaged under subsection (3) of section 103 Cr.P.C. It means that provisions of section 103, Cr.P.C. Have been totally violated by the Police Officer while conducting search and making the alleged recovery of the articles.

4. The main object of section 103, Cr.P.C. Is to ensure that the recovery was effected honstly and fairly and to exclude the possibility of false implication and fabrication.

5. Furthermore, the petitioners are neither previous convicts nor they are reported to be hardened criminals, they remain in Police custody but nothing was C collected to believe that they are involved in anti-social or subversive activities and that according to the reports of different Agencies, they have been cleared to be bright and clean being not involved in any criminal case.

6. Lastly the offence, for which the petitioners have been booked, does not fall under the prohibitory clause of section 497, Cr.P.C. Where grant of bail is a rule and refusal an exception. In view of all the attending facts and circumstances of the case, no exceptional ground exists disentitling them from the concession of bail.

7. For the foregoing reasons, this bail petition is accepted and the petitioners are directed to be released on bail on furnishing bail bonds in the sum of Rs,1,00,000 (Rs, One Lac) with two sureties each in the like amount to the satisfaction of the Illaqa/Duty Magistrate.