SHAHABUDDIN and 2 others vs THE STATE
This criminal petition arises from an order of the Additional Sessions Judge, Tank, dismissing the post-arrest bail application of the petitioners in case F.I.R. No. 151 dated 12-2-2011 registered under section 5 of the Explosive Substance Act and section 13 of the Arms Ordinance at Police Station Tank. The core legal question was whether the petitioners were prima facie connected to the recovery of hand grenades and arms from an adjacent room in light of the site plan and circumstances. The Peshawar High Court held that since the recovery was made from a separate room rather than the immediate or direct possession of the petitioners, and the site plan did not establish their physical dominion over the recovered explosives, their case called for further inquiry under section 497(2) of the Code of Criminal Procedure. The court laid down the principle that recovery of incriminating material from a separate room not in the direct or immediate physical possession of the accused, without corroborative evidence of control, makes their involvement one of further probe, entitling them to post-arrest bail.
- Whether recovery of explosive substances from an adjacent room without proof of direct possession constitutes grounds for further inquiry under criminal jurisprudence?
- Is an offence under section 13 of the Arms Ordinance bailable?
- Whether bail should be granted when the site plan does not prima facie connect the accused to the recovered contraband?
- Section 5, Explosive Substances Act 1908
- Section 13, Arms Ordinance 1965
- Section 497, Code of Criminal Procedure 1898
' ATTAULLAH KHAN, J.---Petitioners, namely, Shahabuddin, Muhammad Umar alias Ijaz and Gul Muhammad Shah have been arrested by the local police in case F.I.R. No,151 dated 12-2-2011 registered at Police. Station, Tank under section 5 Explosive Substance Act read with section 13 A.O.
They applied for their release on bail to the learned Additional Sessions Judge, Tank but did not get the relief and their application was rejected on 17-2-2011. Hence they filed the instant petition for their release on bail before this Court.
2. The summarized facts of the case in which petitioners are charged, are that on 12-2-2011, the local police headed by DSP Head Quarter at 1715 hours raided the room of office of Aman Committee Tank situated at a distance of 2/3 furlong from the Police Station, Tank. They apprehended three persons while sitting in the office, they disclosed their names as Shahabuddin, Muhammad Umar alias Ijaz and Gul Muhammad Shah and from the adjacent room recovered arms ammunitions mentioned in the F.I.R. Along with two hand grenade. Regarding the arms ammunitions the three persons failed to produce an valid license/permit, hence the ibid F.I.R. Was chalked out.
3. Learned counsel for the accused/petitioners argued that section 13 AO is bailable while offence covered under section 5 Explosive Substance Act has not been proved because the hand grenades were not recovered from immediate possession of the petitioners. He further submitted that the site plan prepared by the prosecution does not connect the accused/petitioners with the possession of hand grenades.
4. On the other hand, learned State counsel opposed the bail on the ground that the accused/petitioners are directly charged in the F.I.R. And huge quantity of arms ammunitions along with 2 hand grenade have been recovered.
5. Arguments advanced by learned counsel of the petitioners and state heard and file perused.
6. I have gone through record as well as recovery of arms from Serials Nos.1 to 17 relates to section 13 A.0 which is bailable. The section of law under 5 Explosive Substance Act levelled against the petitioners on account of two hand grenades, the site plan is available on file in which the premises are shown as office Aman Committee. As per site plan there are three rooms, in one room three accused have been shown at Points Nos.1 to 3 along with police officials at Points Nos.3 and 4 to be present and the third room is the place where from the arms ammunitions and two hand grenades have been recovered. The site plan shows that the hand grenades were not recovered from the room in which police party and accused were present. The second point is that arms ammunitions have not been recovered from a direct possession of the accused/petitioners but from the separate room. The third point to be considered is that there is nothing on record to show the possession of petitioners. So the involvement of petitioners in the instant case requires further probe and at the moment there is no evidence on file, to prima facie connect them with the crime.
7. Resultantly, the instant bail petition is accepted and petitioners are allowed to be released on bail provided they furnishes bail bonds in the sum of Rs,1,00,000 (one lac) with two sureties each in the like amount to the satisfaction of Illaqa/Duty Magistrate, Tank. The sureties must be local, reliable and men of means.