IHSAN ULLAH vs THE STATE
This matter concerns a petition for post-arrest bail filed by the accused, Ihsan Ullah, who was charged with possession of a Klashnikov and four hand grenades. The core legal question was whether the petitioner was entitled to bail given the nature of the recovery and the absence of specific evidence linking him to subversive activities. The Peshawar High Court held that the prosecution failed to establish, at this preliminary stage, that the accused possessed the explosive substances for unlawful purposes or that he was a saboteur, which is a necessary element to shift the burden of proof. Furthermore, the court noted the absence of an expert report confirming the nature and serviceability of the recovered items and the lack of required sanction for prosecution. Consequently, the court granted bail, emphasizing that in the absence of conclusive evidence and with the investigation effectively complete, the petitioner's continued incarceration was not warranted. The key principle laid down is that for charges involving explosive substances, the prosecution must provide reasonable suspicion of unlawful intent to justify denying bail, and procedural deficiencies like missing expert reports weigh in favor of the accused.
- Does the mere possession of explosive substances automatically shift the burden of proof to the accused to prove lawful purpose without evidence of subversive intent?
- Is the absence of an expert report regarding the nature and serviceability of recovered explosives a valid ground for granting bail?
- Can bail be granted when the prosecution has failed to obtain the necessary sanction for trial and the investigation is complete?
- Section 13, Arms Ordinance 1965
- Section 5, Explosive Substances Act 1908
' Abdul Hai Khan, A.S.I., Police Station Kulachi alongwith police party consisting of eight Officers/Constables and another Platoon No,70 of Frontier Constabulary, was having round of the area and was present in Main Bazar, Kulachi when he came across Ehsanullah son of Attaullah who was armed with klashnikov and who tried to aim at the police party but was overpowered. Four handgrenades were also recovered in addition to the Klashnikov and four Magazines containing 100 bullets. F.I.R. No,10 was registered against him at Police Station Kulachi on 17-1-1995 on receipt of Murasila by Abdul Hai Khan, A.S.I.
2. The offences under section 13, Arms Ordinance and 5, Explosive Substances Act were considered to be scheduled offences and one involving subversive activities and hence bail was declined to the petitioner by the two forums below.
3. 'There are eight Police Officers and another Platoon of Frontier Constabulary going in the Main Bazar of Kulachi. Such large consignment cannot be deemed to be that spineless that an ordinary person like the petitioner would come across them and would be so dare-devil so as to aim the rifle at the police without any rhyme or reason. Let these facts be thrashed at trial but, for the moment, the sections of law become serious only when the explosive substances are recovered under such circumstances as to give rise to a reasonable suspicion that the accused is not possessing the same for a lawful purpose. In these circumstances, the prosecution should at least have some evidence to the effect that the culprit was a subversions or a sabotier. Such kind of evidence brought on record would shift the burden to the accused to prove that he has been possessing such explosives for a lawful object. This element is lacking at this stage.
4. Since 17-1-1995 no report of the Expert is received to the effect that the four articles recovered were handgrenades and were also serviceable. This would further require a proper sanction for the prosecution which is also not yet obtained. In view of the above deficiencies, the offence in question would fall at this stage under section 13, Arms Ordinance. The learned counsel for the petitioner relied upon The State v. Maqbool Hussain 1987 PCr.LJ 1490 and another latest ruling Muhammad Nawaz v The State 1995 PCr.LJ 186.
5. When the real merits are yet to be determined at trial when the Expert report is not available till today, when the sanction for the prosecution is still awaited and when the petitioner is no more required for further investigation, he is directed to be released on bail provided he furnishes bail bond in a sum of Rs,60,000 with two local, reliable and resourceful sureties to the satisfaction of Ilaqa Magistrate alone.
Cited by 5 cases
- Zahir Shah vs Muhammd sher khan SHO,etc 2015-PHC
- ZAHIR SHAH vs MUHAMMAD SHER KHAN, SHO PS MIRIAN and another 2016 P Cr. LJ 622
- SALAH-UD-DIN and another vs THE STATE and another 2005 MLD 371
- FEROZ vs THE STATE 2004 P C R L J 17
- GUL HASSAN alias NADEEM vs THE STATE 2004 YLR 1562