Syed FIDA UR RAHMAN SHAH and 2 others vs The STATE
This criminal bail application under Section 497 of the Code of Criminal Procedure 1898 sought post-arrest bail for petitioners accused in an FIR registered under Sections 4 and 5 of the Explosive Substances Act 1908, Section 13 of the Arms Ordinance, Section 188 of the Pakistan Penal Code 1860, and Sections 6 and 7 of the Anti-Terrorism Act 1997. The core legal questions involved whether the non-compliance of Section 103 of the Code of Criminal Procedure 1898 and the lack of expert opinion on recovered explosives constitute grounds for further inquiry. The Gilgit Baltistan Chief Court held that failing to associate respectable local inhabitants as recovery witnesses and omitting to send explosive samples for expert evaluation created serious anomalies, bringing the case within the scope of further inquiry. Consequently, the court admitted the petitioners to post-arrest bail, establishing the principle that non-compliance with mandatory search provisions at the bail stage can serve as a favorable circumstance for the accused.
- Whether non-compliance with Section 103 of the Code of Criminal Procedure 1898 regarding recovery witnesses can be considered a ground for bail?
- Does the absence of an expert report on allegedly recovered explosive substances make a case one of further inquiry?
- Can an accused claim bail as a right when the prosecution case suffers from cumulative anomalies and intricacies?
- Section 497, Code of Criminal Procedure 1898
- Section 4, Explosive Substances Act 1908
- Section 5, Explosive Substances Act 1908
- Section 13, Pakistan Penal Code 1860
- Section 188, Pakistan Penal Code 1860
- Section 6, Anti-Terrorism Act 1997
- Section 7, Anti-Terrorism Act 1997
- Section 21-11, Anti-Terrorism Act 1997
- Section 19, Explosive Substances Act 1908
- Section 103, Code of Criminal Procedure 1898
MALIK HAQ NAWAZ, J.---Through instant Criminal Bail Application under section 497, Cr.P.C., the petitioner/accused seeks post arrest bail in FIR No,61/15 dated 31/12/15, registered at Police Station Basin Gilgit, under sections 4/5, Explosive Substances Act, 1908, 13, A.O. 188, P.P.C. Read with section 6/7, A.T.A, 1997.
2. The brief facts of the case of the prosecution are that one ASI Abdul Qadoos received spy information on 31.12.2015 at 0700 hours that some miscreants have gathered in Jagir Baseen, who are planning for launching attack on any Imam Bargah or on the procession of Chehlum. On receipt of this spy information, the complainant along with police party raided the spot, whereas per contents of FIR, seven persons were encircled, but four of them made good their escape and thr-,1 petitioners/accused were arrested and some illicit arms and explosive was taken into possession in presence of the marginal witnesses. The FIR No,61/15 under section 13-A.O., 188, P.P.C.
And 4/5 Explosive Act, 1908 was lodged against the petitioners/accused. The petitioners/ accused after completion of necessary investigation were sent to judicial lockup. The petitioners/accused applied bail before the learned Anti-Terrorism Court No,1 and their prayer for bail was declined vide order 27.02.2016 mainly on the ground that they were arrested red handed and they have confessed their guilt before SSP Gilgit under section 21-11 of ATA-1997.
3. Raja Shakeel Ahmad, the learned counsel for the petitioners/ accused drew our attention towards a news published in Daily K-2 dated 04.12.2015, which struck the headlines. The gist of the occurrence as stated in the newspaper is that a raid by law enforcing agencies was conducted in the midnight of 3/4 December. 2015 and the petitioners/ accused were arrested from a house at Basin. The learned counsel for the petitioners stated that the said facts were disclosed by a highly placed government official in a press conference, which facts negates the whole story of prosecution. He further stated that the offence under sections 4/5 of Explosive Substances Act, 1908 is linked with prior approval of Provincial/Central Government. The learned counsel when confronted with section 19 subsection 8(h), he thought it better not to press this limb of argument.
4. On the other hand the learned Dy.A.G. When confronted with the propositions legal as well as factual, stated that it is a heinous offence and the petitioners/accused are directly charged in the FIR and recoveries have been effected in presence of the marginal witnesses. As per learned Dy.A.G., there, exists a prima facie case against the petitioners/accused and the relief of bail should not be extended to them.
5. We have heard the arguments and perused the record with the able assistance of the counsel for the parties. There is no denial that the petitioners/accused are charged in the FIR and as per prosecution story were arrested red handed, but at the same time, we observe with concern that despite of prior information the I.O. Of the case did not bother to associate any respectable persons of locality and violated the provision of section 103, Cr.P.C. As he cited only police official as recovery witnesses. Non-compliance of section 103, Cr.P.C. Even at bail stage may be considered a favouring circumstance in favour of the accused, and could be termed a sinister attempt to conceal truth, on the part of prosecution.
6. The learned Dy.A.G. Was asked by us to satisfy us about any evidence regarding planning of the petitioners, for commission of the subversive act, for which they have been booked. The learned Dy.A.G. stated and conceded at bar that there is no such evidence except statement of the petitioners under section 21-H of ATA-1997 which in his view is a strong piece of incriminating evidence. The samples of the explosive allegedly recovered from the petitioners has not been sent to expert for expert opinion to the effect that it was an explosive and comes within the purview of sections 4/5 of Explosive Substances Act, 1908.
7. All the above intricacies and anomalies, when taken cumulatively make the present case as one of the "further inquiry". When a case becomes one of the further inquiry, the accused can claim bail as a right and the Courts of the Country lean towards the accused for concessions of bail. The petitioners are ordered to be admitted to bail subject to their furnishing bail bonds in the sum of Rs, 200,000/- (rupees two lac only) with two sureties, each in the like amount to the satisfaction of any judicial Magistrate at Gilgit. The order was announced on 5-04-2016 in open Court and these are the reasons in support of our short order. File.