BISMILLAH KHAN vs THE STATE
The accused-petitioner sought post-arrest bail after being implicated in a case registered under section 13 of the Arms Ordinance and Section 5 of the Explosive Substances Act at Police Station Hangu, having been found in possession of a Kalashnikov and two hand grenades. His earlier bail applications were dismissed by the Judicial Magistrate and the Sessions Judge. The core legal question was whether the petitioner was entitled to post-arrest bail given the nature of the recovery and the circumstances of his arrest. The Peshawar High Court held that the question of whether the petitioner possessed the weapons for an unlawful object as a saboteur or subversionist requires determination after recording evidence. Furthermore, the court noted the absence of independent witnesses at the time of recovery, the completion of investigation, and the submission of the challan. Consequently, the court allowed the bail application, directing the release of the petitioner subject to furnishing appropriate sureties. The key principle laid down is that where an investigation is complete and recovery is uncorroborated by independent witnesses, further inquiry into the petitioner's guilt warrants the grant of post-arrest bail.
- Whether an accused found in possession of a Kalashnikov and hand grenades is entitled to post-arrest bail when the investigation is complete?
- Does the absence of independent witnesses at the time of recovery justify granting bail to an accused?
- Whether the question of whether an accused possessed explosive substances for a lawful object can be determined without recording evidence?
- Section 13, Arms Ordinance
- Section 5, Explosive Substances Act
' Having been involved in case registered vide F.I.R. No.447 dated 24-5-2003 under section 13 A.O.
And 5 Explosive Substances Act, at Police Station Hangu, the accused-petitioner applied for his release on bail in the Court of learned Judicial Magistrate who dismissed the same vide order dated 15-7-2003. Thereafter; he moved the Court of learned Sessions Judge, Hangu but his application met the same fate when it wasrejected on 21-7-2003. Now he has moved this Court for his release on bail.
2. The accused-petitioner was found in possession of one Kalashnikov and two handgrenades.
3. I have heard Mr. Atlas Khan learned counsel representing the petitioner and Mr. Khalid Tanveer Rohaila, Advocate the learned counsel representing the State. I have also perused the record of the case.
4. The question as to whether the accused-petitioner was a saboteur or subvertionist and that the circumstances were such as to give rise to reasonable suspicion that the accused-petitioner was not making or did not have allegedly recovered Kalashnikov and explosive substances in his possession or under his control for lawful object would be determined after recording of evidence.
Though he was arrested from Khasari Camp Hangu but not a single independent witness was associated at the time of recovery. The investigation is complete and the accused-petitioner is no more required for the same and challan as per learned counsel for the State has also been submitted in the Court. I, therefore, allow the bail application in hand and direct that the accused- petitioner be released on bail provided that he furnishes bail bonds in the sum of Rs.200,000 (two lacs) with two sureties each in the like amount to the satisfaction of the Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means.