MUHAMMAD SHARIF vs The STATE
This post-arrest bail application was filed by the applicant seeking release in Crime No. 6/2012, registered under Sections 4 and 5 of the Explosive Substances Act 1908 at Police Station CID, Sindh. The core legal question was whether the applicant was entitled to post-arrest bail on the grounds of lack of independent witnesses under Section 103, Cr.P.C., lack of personal enmity, and alleged misapplication of the Explosive Substances Act. The High Court dismissed the bail application, holding that the recovery of two rocket shells (Golay) was directly effected on the pointation of the applicant while in police custody. The Court held that in such cases, independent public witnesses are often unavailable or unwilling to join, making police officials as competent and credible witnesses as private individuals in the absence of demonstrated police malice or personal enmity. The High Court directed the trial court to frame charges and examine the complainant and recovery witness within three months.
- Can police officials be treated as reliable witnesses for recovery under Section 103 CrPC in the absence of independent private witnesses?
- Is a suspect entitled to bail when incriminating explosive materials are recovered upon his specific pointation while in custody?
- Does the absence of private recovery witnesses automatically entitle an accused to post-arrest bail in explosive recovery cases?
- Section 4, Explosive Substances Act 1908
- Section 5, Explosive Substances Act 1908
- Section 103, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
1. ' AFTAB AHMED GORAR, J.---Through this bail application applicant seeks post arrest bail in Crime No,6/2012 for offence under sections 4/5 Explosive Act registered at Police Station CID, Sindh.
2. ' The allegation against applicant as per F.I.R. Are that during interrogation he disclosed that he has hidden two rocket Golay, in bushes at Suparco Road and led police party towards there and on his pointation recovery was effected.
3. ' Counsel for applicant states that applicant is innocent, who has been falsely implicated in this case by the prosecution. He submits that no private witnesses are associated which is clear violation of section 103, Cr.P.C. Applicant is behind the bars from last eight months as such he is no more required for further investigation. He submits that alleged offence falls within the ambit of section 13-A Arms Ordinance but not under Explosive Act 1908. Therefore, the applicant is entitled for grant of bail. He placed reliance on the case-law reported as Bismillah Khan v. The. State (2004 M LD 224), Zain-ul-Abidin v. The State (2010 M LD 173), Shama Khel and 2 others v. Yousuf Ali Khan and another (2008 YLR 1888), Gul Hassan alias Nadeem v. The State (2004 YLR 1662) and Muhammad Arif Baig v. The State (2008 M LD 185).
4. ' Learned A.P.G. Opposed the grant of bail. He submits that recovery of Two Rocket Golay on the pointation of applicant/accused is sufficient to connect him with the commission of offence.
5. I have heard the learned counsel for the parties and have also perused the record. Admittedly applicant/accused led police party and on his pointation recovery of two Rocket Golay, is effected.
6. No enmity is shown by the applicant/accused that prosecution has falsely implicated him in this case and managed Two Rocket Golay against the applicant/accused. In these type of cases no independent witnesses are ready to witness the incident, therefore, police witnesses are as good witnesses as independent witnesses. In cases referred above the facts and circumstances were different to that of case in hand, therefore the, same are not applicable.
7. ' The result of above discussion is that counsel for, applicant/accused has not been able to make out a case for bail, therefore, this bail application is dismissed. However learned trial Court is directed to frame the charge in case and at least two witnesses i,e, complainant and mashir of recovery be examined within the period of three months.