GUL HASSAN alias NADEEM vs THE STATE
This matter arises from two criminal bail applications filed by the applicants seeking post-arrest bail in Crime No.85 of 1998 registered under sections 3/4 of the Explosive Substances Act, 1908 read with sections 337-F(i), 427, and 147 of the Pakistan Penal Code 1860, relating to an incident where a cracker was allegedly thrown at a bus during a strike call, causing damage and simple injuries. The core legal questions involved the absence of sanction for prosecution under section 7 of the Explosive Substances Act, 1908, the lack of expert reports confirming the use of an explosive substance, and whether general allegations without specific overt acts warranted further inquiry. The court held that the absence of statutory sanction and expert verification regarding the explosive nature of the substance brought the case within the scope of further inquiry under subsection (2) of section 497 of the Code of Criminal Procedure 1898. Consequently, the court admitted both applicants to post-arrest bail, laying down the principle that tentative assessment of material lacking expert corroboration and statutory sanction for special laws warrants the grant of bail for further inquiry.
- Whether the absence of sanction by the Provincial Government under section 7 of the Explosive Substances Act, 1908 affects the jurisdiction of the trial and constitutes a ground for bail?
- Does the lack of an expert report demonstrating that damage was caused by an explosive substance bring the case within the scope of further enquiry under subsection (2) of section 497 of the Code of Criminal Procedure 1898?
- Are accused persons entitled to post-arrest bail when no specific overt acts are attributed to them individually in a crime involving multiple suspects?
- Section 3, Explosive Substances Act 1908
- Section 4, Explosive Substances Act 1908
- Section 7, Explosive Substances Act 1908
- Section 337-F(i), Pakistan Penal Code 1860
- Section 427, Pakistan Penal Code 1860
- Section 147, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER
1. ' By this common order we would dispose of Criminal Bail Application No.347 of 1998 and Criminal Bail Application No.395 of 1998.
2. ' Bail is sought by the applicants in respect of Crime No.85 of 1998 registered under sections 3/4 of Explosive Substances Act, 1908 read with sections 337-F(i), 427 and 147, P.P.C.
3. ' The case set up by the prosecution is that on 6-6-1998 on a call given by Jia Sindh Qaumi Mohaz Party in response to attack on their leader Bashir Ahmad Khan, workers of the, Jia Sindh Mohaz, came in response to the general strike call came but upon seeing the vehicle plying on the road they threw cracker on a bus bearing Registration No.PA-0463 consequent to which glasses of the said bus were damaged. Police personnel claim to have identified the applicants and some private persons also received simple injuries which were attended to at L.M.C.H. And were discharged on the same day.
4. ' The learned counsel for the applicants at the very outset contend that there has been no sanction accorded by the Provincial Government under section 7 of the Explosive Substances Act, 1908 for prosecution of the applicants which would render the trial of the applicants without jurisdiction. It has further been contended that all the witnesses are police officials and there is no independent witness whatsoever. At best the material witnesses could have been the injured persons who have not been examined by the police in the process of investigation. No specific allegation of any overt act to any of the applicants has been attributed, in particular. Inasmuch as five accused were stated to be engaged in the commission of the crime out of which one of them is alleged to have thrown a cracker and therefore, at least four of them are not responsible to have thrown the said cracker. Now which of the four have not thrown the cracker is a matter of evidence at the stage of trial. For the moment the Court of the Special Judge is stated to be not invested with jurisdiction in absence of sanction under section 7 of the Explosive Substances Act, 1908. The learned counsel for the applicants places reliance Ihsanullah v. The State PLD 1995 Peshawar 106.
5. ' On the other, hand the learned State counsel contends that names of the applicants are mentioned in the F.I.R. And this is a fresh case, he however, concedes to the absence of the sanction under section 7 of the Explosive Substances Act, 1908.
6. We have considered the submissions made before us and we are of the view that nothing is available on the record to attribute to the applicants to be subverter- or a saboteur even reports of Experts are not available on record to demonstrate that the damage caused to the glasses of the bus was in consequence of an explosive substance or some other material and whether the substance implied for causing such damage as is alleged in the F.I.R. Was serviceable or not. All these aspects would render the case of the applicants to fall within the scope of further enquiry as contemplated by subsection (2) to section 497, Cr.P.C. We would therefore, admit both the applicants to bail upon their furnishing surety in the sum of Rs.50,000 each and P. R. Bond in the like amount to the satisfaction of the learned trial Court.