SHAH ZAMAN vs STATE
This matter concerns a post-arrest bail application filed by the petitioner, Shah Zaman, who was charged under Section 13 of the Arms Ordinance and Article 5 of the Explosive Substances Act, following the recovery of a significant cache of weapons and ammunition from a Hujra. The core legal question was whether the petitioner was entitled to bail given the circumstances of the recovery and the procedural lapses by the prosecution. The Peshawar High Court held that the petitioner was entitled to bail, determining that the case required further inquiry. The court reasoned that the recovery was made without the association of independent public witnesses as mandated by law, the recovered items were not tested by an expert to confirm operability, and the mandatory sanction from the Provincial Government for prosecution under the Explosive Substances Act had not been obtained. Furthermore, the court noted that the items were found lying on a cot in a third party's premises, casting doubt on immediate possession. Consequently, the court granted bail, establishing that procedural non-compliance in recovery proceedings and failure to obtain statutory sanctions constitute valid grounds for bail.
- Does the failure to associate public witnesses during recovery proceedings under Section 103 of the Code of Criminal Procedure 1898 entitle an accused to bail?
- Is the absence of a sanction from the Provincial Government for prosecution under the Explosive Substances Act 1908 a valid ground for granting bail?
- Does the failure to send recovered arms to a firearms expert to ascertain their working condition constitute a ground for further inquiry in bail proceedings?
- Section 13, Arms Ordinance 1965
- Article 5, Explosive Substances Act 1908
- Section 497, Code of Criminal Procedure 1898
- Section 161, Code of Criminal Procedure 1898
- Section 103, Code of Criminal Procedure 1898
- Section 7, Explosive Substances Act 1908
Shah Zaman son of Sheraz seeks bail in. case FIR No, 579 dated 11.7.2011 registered at PS. Badaber u/S. 13 AO read with Article 5 of the Explosive Substances Act.
2. The fact in brief are that Fazle Wahid Inspector SHO sent Murasila stating therein that he received information that Arif alias Abuzar accused in case FIR No, 107 dated 2.2.2011 u/Ss. 302/324/120-B etc. registered at PS. Badaber was present in the Hujra of one Fazal Amin situated in village Tela Band.
On this information he alongwith Salim Khan, Qayum Khan, Sher Afzal Khan Sub-Inspectors and the other police contingent raided the Hujra of Fazal Amin where he found Wahid son of Muhammad Din and Shah Zaman son of Sheraz present. On the cot. He found (1) HMG 81165/AB 75 loaded with 180 rounds (2) PRG 7170421 alongwith 3 rounds of Rocket Launchers, (3) LMG PR 3507 loaded with 45 cartridges (4) SMG XR 1480 loaded, with 20 live rounds (5) SMG 2515444 loaded with 20 live rounds, Rifle .303 Bore No, 3815 and two Hand Grenades lying on a cot. The aforesaid two persons present at the spot could not give any plausible explanation for their presence while Arif alias Abuzar was found absent. The above named two persons were arrested in the case and Murasila was sent to PS for registration of the case as such the aforementioned case FIR was registered.
3. Learned counsel for the accused-petitioner argued that despite prior information no public witness was associated. He further argued that the aforesaid articles were not recovered from the actual physical possession of the accused-petitioner and that the recovered articles wore not sent to the fire arms expert to ascertain as to whether the same were in working condition. He further Contended that the accused was not involved in any criminal case previously and that there are material contradictions in between the statement of prosecution witnesses recorded u/S. 161 Cr.P.C. as compared to the FIR.
4. On the other hand the learned counsel for the State argued that a huge quantity of Arms and Ammunitions was recovered and that the offences - with which the accused is charged falls within the prohibitory clause of Section 497 Cr.P.C.
5. Arguments heard and file perused.
6. Perusal of the record reveals that no public witness of the locality as required u/S. 103 Cr.P.C. was associated with the recovery proceedings. The so-called Arms and Ammunition recovered by the complainant were not sent to the expert to ascertain as to whether the same were in working condition and were operatable. According to the prosecution's own version the articles mentioned above were recovered from the Hujra of Fazal Amin. Neither he was made an accused nor a witness and that the articles were found lying on a cot as such the case of accused becomes one of further inquiry. Moreover consent sanction of the Provincial Government for prosecution of the case as required u/S. 7 of Explosive Substances Act, has not been obtained so far. In this view of the matter this application is allowed. The accused-petitioner be released on bail subject to furnishing bail bonds in the sum of Rs, 2 lac with two sureties each in the like amount to the satisfaction of the Illaqa/Judicial Magistrate.