ABDUL HAMEED vs THE STATE

ORDER

' SALMAN HAMID, J.---Per F.I.R. No,80 of 2011 of Police Station Ibrahim Haidri, Karachi lodged by A.S.-I.

Siraj Khan (Complainant) under sections 3, 4 and 5 of Explosive Substances Act 1908, (incorrectly/inadvertently mentioned in the F.I.R. As Explosive Act) read with section 7 of Anti- Terrorism Act 1997/34 that the complainant reached near Lahoti Hotel. Juma Goth, Ibrahim Haideri, Karachi and met Lal Bux, S.H.O., Police Station Ibrahim Haideri who was already available there. It was noticed by the complainant that in the street of the hotel a house had been collapsed apparently due to a bomb-blast. In the collapsed house a dead body was found and two injured persons. The injured persons were rescued who were later identified as Sadruddin, son of Abu Bakar and Ismail son of Allah Dino. Such two identified persons, according to the contents of F.I.R informed that they were living in the house with one Zulfiquar Kolachi and that they were involved in terrorist activities and belong to Jee-a-Sindh Mutehda Mahaz and were present in Juma Goth for bomb-blast and making bomb when all of a sudden bomb in the hand of Zulfiquar exploded who died instantly. According to the F.I.R. Mobeen and Haroon Faisal, son of Maqbool were arrested while they were trying to escape from the collapsed house. Such persons upon arrest disclosed the name of Hameed, son of Zulfiquar Ali (applicant) to be one of their companions. Dead body, recovered from the rubble -of the collapsed house was referred to Jinnah Hospital, Karachi after necessary proceeding under section 174, Cr.P.C. While the injured accused were admitted to Jinnah Hospital under the custody of the police guards.

2. Basing his arguments on the contents of the above F.I.R., it was argued by the learned counsel for the applicant that he (applicant) who is an educated employed person is innocent and has been falsely implicated in the case with mala fide intentions. There was no reasonable ground to believe that the applicant had committed the above offence. It was also urged that the statement of the co-accused and of the applicant of implication of the applicant in the crime is inadmissible in evidence. It was asserted that according to the police papers the applicant was arrested by the police of Zaman Town Police Station whereas the present F.I.R. Relates to Police Station Ibrahim Haideri. It was also mentioned that no recoveries were made from the applicant and there was 18 days delay in sending the recovered substance from place of incident for chemical analysis. It was also asserted that though the blast had taken place in a house located in a public place, no independent witness was associated though per Entry dated 12-3-2011 people gathered at the place of occurrence. The statement of witnesses was recorded after delay of 8 days. It was also implored that the applicant has no criminal record and is not a previous convict. Under the circumstances, it was insisted that the case of the applicant is one of further inquiry. Reliance was placed on the cases of Muhammad Pervaiz v. The State (2005 SCM R 1038), Muhammad v. The State (1998 SCM R 454), Muhammad Mushtaq v. Muhammad Ashiq and others (PLD 2002 SC 841), Inam-ul-Haq and, another v. The State and another (2009 PCr.R. 1), Muhammad Rafiq ul Islam v.

The State (1998 PCr.LJ 1262), Rehmatullah alias Babu v. The State (2002 PCr.LJ 528), Junaid and 2 others v. The State (2000 PCr.LJ 1510) and M. Ahmed alias Daniyal v. The State (2005 YLR 952).

3. Learned DPG opposed the bail application. It was stated that since the name of the applicant is specifically mentioned in the F.I.R. And that the medical evidence also supports that he (applicant) was associated with the offence and that in his statement, he confessed to the same and by virtue of Article 40 of the Qanun-e-Shahadat Order 1984. When any fact is deposed by an accused comes to light and/or discovered, shows that the accused was involved in the commission of offence and therefore, it was asserted, that the applicant was not entitled to bail.

4. We have heard argument of learned counsel on either side. It is evident from the record that though the learned DPG heavily relied upon the medical report to show that the applicant had sustained injuries due to blast but did not produce the same. It may be noted that even if the medical report would have been produced and it was shown that the applicant had sustained injuries as a result of blast/explosion, at bail stage it could not be attributed to him for the simple reason that admittedly the applicant was not arrested on the spot and was arrested subsequently far away from the place of incident and that too upon pointing out by the other accused of the F.I.R.

Injuries on the body of the applicant could be for any reason and tentatively cannot be joined with the explosion of the house. The connection of applicant with the explosion at this stage of time, when the evidence at bail stage is not required to be looked into and/or appreciated profoundly, prima facie does not hook-up the applicant with the offence and brings out a case of further inquiry as demanded by subsection (2) of section 497, of Cr.P.C. This being apart, the provision of sections 3, 4 and 5 of the Explosive Substances Act 1908 would show that any person found associated in causing explosion and/or keeping explosive items with intent to endanger life or property and/or making explosives would he punished for such offences. It is nobody's case that the applicant was either found possessing the explosive substances or making such explosive substance and/or that he was even arrested from the place of explosion to show that he was busy in making explosive substances and because of explosion suffered injuries. It is an admitted position that the applicant was arrested from a far out place from the place of explosion.

5. Looking at the facts and circumstances of the case, the provision of Article 40 of Qanun-e- Shahadat Order 1984 posed by the learned DPG seem to be out of place and without substance inasmuch as that such Article stipulates that when the accused, (in the present case the applicant) deposes and/or confesses, the same is required to be proved. This would be possible only upon a full-fledged trial of the case. Provisions of this Article cannot be taken advantage of by the State at least at this stage of time. It may also be noted that Article 40 is an exception to Articles 38 and 39 of the Qanun-e-Shahadat Order and that to bring the case within the confines of Article 40, it is incumbent upon the prosecution to establish that the information conveyed by the accused actually led to the discovery of B some facts and that such fact was not in the knowledge of the police and that it came to light for the first time upon accused's confession. It is clear from the record/F.I.R. That the police concerned were already aware of the incident of explosion of the house on 5-3-2011 and that they also made arrests of certain accused and that those accused mentioned name of the applicant and he (Applicant) was subsequently arrested.

6. For all the above reasons, we find that a case of further inquiry as contemplated under subsection (2) of section 497, Cr.P.C. Has, been made out accused is enlarged on bail provided he furnishes a solvent surety in the sum of Rs,200,000 and a PR bond in the like amount to the satisfaction of Nazir of this court.

7. The observations made hereinabove are tentative and/or for the purposes of present bail application which would by no stretch prejudice the trial of the case. Application is disposed of in above terms.