CAPT. DR. MUNIR AHMED KHAN Versus THE STATE

JAVED IQBAL, J. --- This is an application for bail moved on behalf of Captain Dr. Munir Ahmed Khan, against whom a case has been registered under section 13-A of Arms Ordinance, 1965 on the alleged recovery of huge quantity of Arms and Ammunition from his possession as a result of raid conducted in pursuant to a secret information of some agency. Learned Special Judge, Suppression of Terrorist Activities, Balochistan, Quetta, has rejected bail application on 1-8-1996.

2. It is mainly contended by Mr. Muhammad Aslam Chishti, Advocate that F.I.R. was got lodged with mala fide intention and on the basis of enmity and the petitioner who is having an unblemished record of his services is not involved in the alleged offences. It is next contended that the alleged recovery of boxes containing Arms and Ammunition were effected from a house situated at 10-B, Model Town, Quetta, belonging to one Khawaja Ajmal Ahsan and the same were not in possession of the accused/applicant, hence he cannot be held responsible for the items contained in the boxes. It is further contended that the matter falls within the ambit of further enquiry as a Cheque Book of National Bank of Pakistan, Civil Secretariat Branch, Quetta pertaining to Account No.3068 was also allegedly recovered from the boxes but on the contrary a cheque was got encashed on 23/24-6-1996 from the Bank meaning thereby that Cheque Book was in possession of the accused/applicant and it further clarifies the false involvement of the accused /applicant in a concocted case. It is also urged that Khawaja Ajmal Ahsan from whose house the alleged recovery was effected should have been made co-accused instead of prosecution witness. It is argued that no case is made out under section 13-E of Arms Ordinance, and on this score alone, the accused/applicant deserves concession of bail, and moreso, section 13-A of Pakistan Arms Ordinance, 1965 is not applicable as recovery was not effected from exclusive possession of the accused/applicant. It is further argued that no private witness could be associated and search was conducted in violation of the provisions as contained in section 103, Cr.P.C. The ground of ailment was also taken. In order to substantiate his contentions reference was made to 1992 PCr.LJ 1748, 1987 PCr.LJ 1668, PLD 1967 Pesh. 53, PLD 1995 SC 34.

3. Chaudhary Ejaz Yousaf, Additional Advocate-General appeared on behalf of State and strenuously controverted the position as canvassed by Mr. Muhammad Aslam Chishti, Advocate, and contended that sufficient incriminating material is available connecting the accused/applicant with the commission of alleged offences. It is next contended that raid ? was conducted in presence of Magistrate and hence the question of violation of provisions as contained in section 103, Cr.P.C. does not arise. It is further contended that accused/applicant has admitted in presence of Magistrate regarding ownership of boxes from where personal belongings were also recovered and the said admission .can be treated as extra judicial confession. He has relied on the statements of Khawaja Ajmal Ahsan and Mr. Zulfiqar Durrani, Magistrate First Class, Quetta, by whom the accused/applicant has been implicated fully.

4. We have carefully examined the respective contentions as adduced on behalf of the accused/applicant and for-State in the light of relevant provisions of law and available record. We have thoroughly perused the order, dated 1-8-1996 passed by learned Special Judge, Suppression of Terrorist Activities, Balochistan, Quetta, rejecting the bail application of accused/applicant. Let we make it clear at the outset that question of guilt or innocence cannot be decided at bail stage and no verdict of innocence be given without recording of evidence, which is yet to be recorded. We have not been able to persuade ourselves to agree with the main contention of Mr. Muhammad Aslam Chishti, Advocate that case was got lodged with mala fide intention as this plea could be taken during trial and may be considered by the trial Court as may be deemed fit arid proper in the light of evidence. It is an admitted feature of the case that no mention was made about the keys of the boxes in F.I.R., but it cannot be concluded that it was so done with mala fide intention as it is well-settled by now that it is not essential that each and every detail must be incorporated in F.I.R. which is a simple device to set the law in motion. Let we make it clear at this juncture that while considering this bail application we are not required to assess the entire prosecution evidence in depth and only a tentative assessment is required to be made. The fine technicalities such as violation of provisions as contained in section 103, Cr.P.C., association of Khawaja Ajmal Ahsan as prosecution witness and non-mentioning of the keys in F.I.R., cannot be discussed at this stage as it would be too premature to decide such matters. In our view it is for the trial Court to examine all the abovementioned pleas in light of evidence, which would be recorded in due course of time. It transpires from scrutiny of record that sufficient incriminating material has come on record to connect the accused/applicant with the commission of alleged offences. In this regard the statements of Khawaja Ajmal Ahsan and Zulfiqar Durrani, Magistrate First Class, Quetta, can be referred by whom the accused/applicant has been implicated in a categoric manner and it can be inferred safely that reasonable grounds exist to believe that a prima facie case is made out against the accused/applicant. Mr. Muhammad Aslam Chishti, Advocate has urged with vehemence that recovery could not be effected from possession of accused/applicant as such, he deserves bail on this score alone, but the said contention being devoid of merit cannot be considered for the reasons that possession does not mean "physical possession". It must be interpreted in its broadest sense, and apart from physical possession, must also mean the ownership of and control over, the movable property-concerned. PLD 1954 Bal.

70. It hardly needs any elaboration that possession also means constructive possession and simultaneously "possession can he physical or actual as well interprative, because it can be visible as well as invisible. It is invisible when the possessor stands far away from the object which he possesses but is able to prevent encroachment on it, if and when they are made, it is similarly invisible when the possessor reserves an object for a particular use and allows it to remain unutilised till the purpose of the reservation". PLD 1969 Kar. 622. It can be said with certainty that the possession in its primary sense is the visible possibility of exercising control over a thing coupled with the intention of doing so. It is pertinent to mention here that besides the admission of accused before the' Magistrate regarding the ownership of the boxes from where huge quantity of Arms and Ammunitions were recovered, personal belongings such as introduction cards, personal diaries, file-cover containing personal papers anti cloths were also recovered hence the interpretation of possession as made by Mr. Muhammad Aslam Chishti, Advocate would not render any assistance to the case of accused/applicant.

5. There is no cavil to the proposition that the Court does not have to embark on a detailed factual enquiry but only to see if reasonable grounds exist to connect the accused/applicant with the commission of alleged offences. At bail stage Court has not to give any finding regarding merits of the case and have to take prosecution case on its face 'value. 1985 PCr.LJ 1315, 1982 PCr.LJ 495, 1974 PCr.LJ Note 85 at p.53 (Karachi), 1986 PCr.LJ 2871, PLD 1968 SC 349. In so far as the concept of further enquiry is concerned that can be invoked in every case and as such, this element itself is not sufficient for granting bail under section 497(2), Cr.P.C. Even otherwise the matter does not fall within the ambit of further enquiry in view of sufficient incriminating material which has been collected against the accused/applicant of the including F.I.R., which was got lodged with promptitude and a specific role has been assigned to accused/applicant. PLD 1991 SC 412, PLD 1988 SC 621 can be referred in this regard.

6. We have also focused our attention on the point of ailment. It is well-?settled by now that for grant of bail in pursuance of provisions as contained in first proviso of section 497, Cr.P.C., it is not essential that the ailment should be an alarming nature which may endanger the life of patient, but the initial requirement is the satisfaction of Court. Moreover, "the circumstances of the case and their cumulative effect together with the seriousness of the offences, the severity of punishment, the likelihood of the accused absconding or tampering with the witnesses has to be considered alongwith the nature and seriousness of the sickness together with the desirability of detention in jail by reason of availability or otherwise of necessary medical treatment and amenities have to be borne in mind before a person is granted bail when he is facing capital charge. It is not every kind of sickness or ailment which considered in isolation would entitle an accused to bail". 1979 PCr.LJ 908 (Karachi). The accused/applicant is not suffering from uncurable disease subject to the availability of relevant medicines and precautionary measures. The accused presently is in Civil Hospital, Quetta, and there is no complaint about the shortage or non?availability of medicines. In our view all that the accused/applicant needs is proper treatment irrespective of the fact whether he is in jail or at bail. In such view of the matter when special care is being taken as accused was shifted immediately from jail to Civil Hospital and proper care is being taken, we are, not inclined to accept this application as sufficient incriminating matter has come on record involving the accused/applicant in the commission of alleged offences. We are deliberately withholding our comments on the merits of the case, lest it may prejudice the case of any of the parties.

7. We have also focused our attention that section 13-A of Arms Ordinance, 1965, is not applicable and it should be read as 13-E of Arms Ordinance, 1965. As mentioned earlier the factum of possession is not only confined to physical possession as it would be too premature to substitute section 13-A with that of 13-E of Arms Ordinance, 1965 which otherwise is not possible. Let this aspect of the matter be decided by learned trial Court. The encashment of cheque is "no ground to discard the rest of the incriminating material which has been collected against the accused/applicant.

8. Viewed in the perspective of the foregoing discourse, we have no hesitation in holding that prima facie a case is made out against the accused/applicant, and therefore, we are, not inclined to accept the application, which is rejected accordingly.

All the observations made hereinabove are tentative in nature and as such it should not influence the trial Court while deciding the case.

N.H.Q./601/Quetta ????????????????????????????????????????????????????????????????????????????? Bail refused.