2014 P Cr. L J 308
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
JALAL UD DIN and another ---Applicants
Versus
The STATE---Respondent
Criminal Bail Applications Nos. 359 and 360 of 2013, decided on 2nd August, 2013.
Criminal Procedure Code (V of 1898) ---
----S. 497---Explosive Substances Act (XI of 1908), Ss.3, 4 & 5---Recovery of explosive
substance ---Bail, refusal of ---Potassium Chlorate packed in 80 sacks was recovered from the
possession of accused ---Plea raised by accused was that the material recovered from them was
not explosive itself ---Validity ---"Potassium Chloride" by itself was not an explosive substance
but accused were found in possession of "Potassium Chlorate" and not "Potassium Chloride" ---
"Potassium Chlorate" was derived from "Potassium Chloride" by means of chemical process and
the same could be used in country made bombs etc.--- Besides evidence of Bomb Disposal
Commander, prosecution had also placed on record certificate issued in that regard---Mere
possession, in absence of strict proof of mala fide intention of person in possession of explosive
did not constitute offence within the meaning of either S.3 or 4 of Explosive Substances Act,
1908, and case would be covered by S.5 of Explosive Substances Act, 1908---Tentative
assessment of evidence available on record gave rise to suspicion and accused had not been able
to give any plausible explanation to dispel the same ---Sentence for a term which might extend to
fourteen years, had been provided under S.5 of Explosive S ubstances Act, 1908, and the same
fell within the prohibitory clause of S.497, Cr.P.C.--- Bail was refused in circumstances.
Muhammad Ayub Tareen and Asif Barech for Applicants.
Amir Hamza Mengal, Deputy Prosecutor -General for the State.
Date of h earing: 31st July, 2013.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J. ---Applicants, Jalal -ud-Din and Gul Dad,
respectively through Criminal Bail Applications Nos.359 and 360 of 2013, seek post arrest bail
in case F.I.R. No.35 of 2013, dated 26th March, 2013 for the offences, under sections 3 and 4 of
the Explosive Substances Act, 1908 read with section 34 of the P.P.C., registered at Kuchlak
Police Station, Quetta, on the report of one Abdul Rahim, IP/SHO.
2. The gravamen of the charge against the accused/applicants is that on 26th March, 2013
around 6- 15 p.m. near Railway crossing, Kuchlak, a vehicle bearing registration No.715 -TKK
was intercepted by the police and during course of search of the said vehicle, 80 sacks, each
containing 25 kilograms, were che cked, which were found to be potassium chlorate. As per
contention of the complainant, the Bomb Disposal Commander; viz, Abdul Razzaq was called at
the site, who, after checking the recovered stuff, intimated that the sacks contained potassium
chlorate, wh ich can be used in making of explosives. The material was taken into possession
through recovery memo. and the accused/applicants were also taken into custody.
3. Learned counsel for the accused/applicants submitted that absolutely there is no evidence
available on record to show that the potassium chlorate found in possession of the
accused/applicants was by itself an explosive substance or that the same was intended to be used
for an explosion of a nature likely to endanger the human life or to cause se rious injury to the
property. They further submitted that, even otherwise, mere possession in absence of strict proof
of mala fide intention of person in possession of explosive does not constitute an offence within
the meaning of either section 3 or 4, thus the accused/applicants, are entitled to be admitted on
bail.
4. On the other hand, learned Deputy Prosecutor -General, appearing on behalf of the State
opposed the application.
5. I have considered the rival contentions of the learned counsel for the parties in the light of
relevant provisions of law and have also gone through the contents of bail refusing order as well
as evidence so far as collected by the prosecution, which, tentatively, reveals that on the fateful
day, the accused/applicants were found in possession of 80 sacks of potassium chlorate, which
was loaded in the vehicle in question. The potassium chlorate can be derived from potassium
chloride by means of chemical process and when it is decomposes on heat, giving out oxygen
and producin g heat and one molecule will give 16 kilos calories of heat. Spontaneous explosion
of its substances is not uncommon. One of the primary uses of potassium chlorate is for
explosives. It is susceptible to hear and when it decomposes on break down, it produc ed heat.
Chlorate, in combination with combustible of all types, constitutes a serious fire and explosion
hazard. If potassium chlorate and hydro sulphate are kept in a sealed water -tight wagon, any
shock or jerk would cause friction and heat in potassium chlorate, which results in explosion. I
am in agreement with the learned counsel for the applicants that "potassium chloride" by itself is
not an explosive substance, but, admittedly, the accused/appellants were found in possession of
"potassium chlorate" and not "potassium chloride". The "potassium chlorate" derived from
"potassium chloride" by means of chemical process and the same can be used in country made
bombs etc. Besides, the evidence of Bomb Disposal Commander Abdul Razzaq, the prosecution
has als o placed on record the certificate issued by the Assistant Inspector -General of Police,
BDU, Special Branch, KPK, Peshawar dated 21st June, 2013, which reads as under: --
"The above item Improvised High Explosive is alive and dangerous, therefore handle
with care and recommended for early destruction."
6. It is also trite saying that mere possession in absence of strict proof of mala fide intention
of person in possession of explosive does not constitute an offence within meaning of either
section 3 or 4 and the case would be covered by section 5 of the Explosive Substances Act, 1908,
which reads as under: --
"5. Punishment for making or possessing explosives under suspicious circumstances. Any
person who makes or knowingly has in his possession or under his control any explosive
substance, under such circumstances as to give rise to a reasonable suspicion that he is not
making it or does not have it in his possession or under his control for a lawful object, shall,
unless he can show that he made it or had it in his possession or under his control for a lawful
object, be punishable with imprisonment for a term which may extend to fourteen years."
7. A bare reading of the aforesaid provision of law clearly demonstrates that it would be
enough if surrounding circumstances are such to give rise to a reasonable suspicion that accused
did not possess explosive for lawful object. This inference would, of course, be rebuttable, but
onus of showing that inference is not correct lies on accused. Prima facie, a tentative assessment
of evidence available on record of the case did give rise to such a suspicion and the applicants
have not been able to give any plausible explanation to dispel. Section 5 of the Act of 1908
provides a sentence for a term, which may ext end to fourteen years, which, admittedly, falls
within the prohibitory clause of section 497 of the Cr.P.C.
Thus, in view of the above and without further commenting on merits or demerits of the
case, which would certain prejudice the case of either par ty, I am not inclined to allow these
applications, which are, accordingly, dismissed. Needless to observe here that the observations,
made hereinabove, are purely tentative in nature and the trial Court shall not get influenced by it
in any manner.
MH/85 /Bal. Bail dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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