IKRAM KHAN Versus State
This criminal miscellaneous application was filed by petitioner Ikram Khan seeking post-arrest bail in a case registered under section 13 of the West Pakistan Arms Ordinance 1965, section 5 of the Explosive Substances Act 1908, and section 7 of the Anti-Terrorism Act 1997 at Police Station Kulachi, District D.I. Khan. The core legal questions involved whether the offence under section 13 of the West Pakistan Arms Ordinance 1965 is bailable, whether section 5 of the Explosive Substances Act 1908 is tentatively applicable, and whether recovery from a residential room without proof of exclusive possession warrants further inquiry under section 497(2) of the Code of Criminal Procedure 1898. The Peshawar High Court held that the offence under section 13 of the West Pakistan Arms Ordinance 1965 is expressly bailable, that the application of the Explosive Substances Act 1908 was questionable upon tentative assessment, and that establishing exclusive possession of the recovery site required further probe. The court laid down the principle that recovery from a joint or residential space without proof of exclusive possession and the absence of a ballistic report at the bail stage constitutes a case for further inquiry, entitling the accused to post-arrest bail.
- Whether an offence under section 13 of the West Pakistan Arms Ordinance 1965 is bailable?
- Does the recovery of arms from a residential room without established exclusive possession make the case one of further inquiry under section 497(2) of the Code of Criminal Procedure 1898?
- Whether the absence of a ballistic report regarding the recovered arms affects the grant of bail at the preliminary stage?
- Section 13, West Pakistan Arms Ordinance 1965
- Section 5, Explosive Substances Act 1908
- Section 7, Anti-Terrorism Act 1997
LAL JAN KHATTAK J.--- Petitioner Ikram Khan has applied this court for his release on bail in case registered against him under section 13 of the West Pakistan Arms Ordinance 1965, section 5 of the Explosive Substances Act, 1908 and section 7 of the Anti-Terrorism Act, 1997 at Police Station Kulachi of District D.I.Khan vide F.I.R. No. 221 dated 31-7-2013.
2. Short facts of the case are that during a search operation in the area S.H.O. Asghar Ali Shah of Police Station Kulachi raided a house in village Rori and recovered from a residential room of the house a Rocket Launcher with four shells, two Mark four rifles, one rifle of .303 bore and one .12 bore shotgun double barrel. The petitioner was found present in the room and so was arrested as accused for possessing the aforesaid arms and ammunition without any licence under the law.
3. Learned counsel for the petitioner in support of the bail plea contended that case of the prosecution against the petitioner is fabricated and concocted one as there is no independent eye witness to the alleged recovery. The learned counsel further submitted that the alleged recovery has not been effected from the personal possession of the petitioner but from a room and so the case requires further probe regarding his involvement in the commission of the offence with which he is charged.
4. The learned Additional Advocate General has opposed the bail petition.
5. I have heard learned counsel for the petitioner and the learned A.A.-G. for the State and also perused the record of the case.
6. Legal position in the instant case is that the recovered arms and ammunitions are covered under section 13 of the West Pakistan Arms Ordinance, 1965 which is bailable as according to Schedule-II of Cr.P.C. under the heading "Offences Against Other Laws" offences carrying punishment of more than three years but not exceeding seven years are not bailable with the exception of offences under section 13 of the Arms Ordinance, 1965, which have been expressly declared to be bailable. Reliance is placed on 2013 SCMR 834.
7. Though in the F.I.R. the local police has added section 5 of the Explosive Substances Act, 1908 but the recovered items fall under the West Pakistan Arms Ordinance, 1965 and there is nothing for the application of section 5 of the Explosive Substances Act, 1908 at least for the moment as well as from the tentative assessment of the available record.
8. Another aspect of the case is that the alleged recovery has been effected from a residential room of the raided house, and it will yet to be established by the prosecution that the petitioner was in exclusive possession of the raided house as well as of the residential room. To know and assert that it was only the petitioner and nobody else who owned and possessed the said house and the residential room requires further enquiry which fact entitles the petitioner for his release on bail.
9. Perusal of the case record further revealed that there is no report of the Ballistic Expert on the file which could show that the recovered arms and ammunitions are in working condition.
10. For the above discussion and reasons, this court is of the considered view that the petitioner/accused has made out a case for the purpose of bail. Therefore, on acceptance of this application, the petitioner is admitted bail subject to his furnishing bail bond of Rs.2,00,000 with two sureties of the like amount to the satisfaction of Illaqa/Judicial Magistrate who shall see that the sureties are local, reliable and men of means.
HBT/521/P Bail granted.