2023 M L D 271
[Balochistan (Sibi Bench)]
Before Nazeer Ahmed Langove and Sardar Ahmed Haleemi, JJ
HIDAYATULLAH alias DILI JAN and another ---Applicants
Versus
The STATE--- Respondent
Criminal Bail Application No. (s) 128 of 2022, decided on 29th July, 2022.
Criminal Procedure Code (V of 1898) ---
----S. 497--- Explosive Substances Act (VI of 1908), Ss. 4 & 5--- Anti-Terrorism Act (XXVII
of 1997), S. 7---Attempt to cause explosion, or for making or keeping explosive with intent
to endanger life or property- --Making or possessing explosives under suspicious
circumstances ---Act of terrorism ---Bail, grant of ---Scope ---Accused persons were alleged to
have been found in possession of explosive substances and had not made any disclosure before the police witnesses nor during investigation nor anything was brought on record
regarding their link with any banned organization---Ingredients of S. 7, Anti -Terrorism Act,
1997, were missing---Prosecution had failed to bring history of involvement of accused persons in any criminal activity ---One of the accused persons had been abducted two months
prior to the instant case regarding which a report in roznamcha was duly lodged--- During
investigation prosecution had ignored such aspect of the case ---Police had violated the
mandatory provision of S. 103, Cr.P.C., despite the fact that the police had adequate time
with them to associate public witnesses of the locality at the time of search and recovery of explosives --- Accused persons were admitted to bail.
Allah Ditta v. The S tate 2014 PCr.LJ 658; Muhammad Iqbal alias Bala v. The State
1995 SCMR 342; Muhammad Noman v. The State 2017 SCMR 560 and Kamran Shahzad v. Sikandar Latif and others 2014 YLR 1500 ref.
Ali Hassan Bugti and Muhammad Hassan Bugti for Applicants.
Yahya Balo ch, Additional Prosecutor General (A.P.G.) for the State.
Date of hearing: 25th July, 2022.
ORDER
SARDAR AHMED HALEEMI, J. ---The case arises out of order dated 30.04.2022
(hereinafter the "impugned Order") passed by the learned Special Judge Anti -Terrori sm
Naseerabad at Dera Murad Jamali (hereinafter "the trial Court") in Criminal Bail Application
No.11 of 2022, wherein the learned trial court was not inclined to grant bail to the
accused/applicants in FIR No.03/2022 dated 28.01.2022 at CTD Police Station Naseerabad
registered under sections 4 and 5, Explosive Substances Act, 1908 (hereinafter "the Act") read with section 7, Anti -Terrorism Act, 1997 (hereinafter "the ATA").
2. Succinctly stated facts of the prosecution case as gleaned from FIR are that the
complainant IP Eid Muhammad lodged FIR vide Crime No.08/2022 with Police Station CTD Naseerabad with the allegation that on 28.01.2022 he was present in police station where squealer gave information to him that three suspects carrying travelling bags wal king on foot
towards Landhi Gandawah road side. That information was passed to seniors. The BD team was called at about 1:00 p.m., and he along with other CTD police officials namely ASI Muhammad Aslam, ASI Muhammad Yaqoob, Abdul Khaliq and driver/constabl e Gul Jan
proceeded in official vehicles from police station and reached at about 1:40 p.m, at Landhi Gandawah road, started searching the said suspects. As soon as they reached near Pitafi Mor Gandawah, they saw three persons carrying bags. While catching the sight of police vehicle,
the suspects became vacillate, hence they were apprehended. On inquiry, they suspects stated that their names were Hidayatullah alias Dili Jan son of Muhammad Ibrahim by caste Sumalani, Muhammad Essa alias Shadad son of Mir Do st by caste Baloch and Naseebullah
son of Muhammad Hayat by caste Jamaldini. They got checked their bags through BD team, a suit of clothes white in color and a polythene bag containing explosive substances, priama card (wire) silver in colors, iron nut bolt and one detonator was recovered from the bag of accused Hidayatullah alias Dili Jan. Whereas, on checking the bag of Muhammad Essa, a suit of clothes brown in color, polythene bag containing explosive substances, pirama card (wire) silver in color, iron nut bolt and a detonator were recovered. Similarly, while checking the
bag of accused Naseebullah, a suit of clothes white in color, polythene bag containing
explosive substances, iron nut bolt and priama card (wire) silver in color were found. On weighin g, explosive substances recovered from the possession of accused Hidayatullah found
that 1200 grams, 600 grams iron nut bolt and 11 feet priama card (wire). The explosive substances recovered from accused Muhammad Essa weighed 1150 grams, 700 grams iron nut bolt and 8 feet priama card (wire) were taken in possession through recoveries memo respectively in presence of witnesses ASI Muhammad Aslam and ASI Khair Muhammad. Samples drawn/separated from the recovered explosive substances for chemical analysis and
seal parcels prepared accordingly. On conducting personal search of above named persons, cash amount Rs.1900/ - was recovered from the pocket of accused Hidayatullah. Rs.1500 was
also recovered from accused Muhammad Essa alias Shahdat and Rs.2900/ - were recovered
from the possession of accused Naseebullah. The same were taken in possession through seizure memos respectively and parcels prepared. The complainant further alleged that accused persons named above disclosed that they belonged to the banned organ ization i.e.
BLA and they wanted to target Dera Murad Jamali city by means of blast. Hence, the crime report.
3. After registration of FIR, the accused persons were investigated and on completion
thereof they were remanded to judicial custody.
4. After submission of final investigation report, challan was filed before the trial court
and the trial is pending.
5. The trial court after receiving challan provided all the required documents to the
applicants/accused as per law and thereafter the trial court framed the charge against the
accused persons and both the accused persons pleaded not guilty and claimed to be tried.
6. During trial, the prosecution examined as many as two witnesses.
7. In the meanwhile, the applicants/accused filed bail applicat ion No.11 of 2022 for the
grant of post arrest bail before the trial court which was declined vide order dated 30.04.2022.
8. The accused/applicants approached this Court by means of filing Criminal Bail
Application No.(S) 128 of 2022 seeking post arrest bail.
9. We have heard learned counsel for the accused/applicants as well as learned APG at
length and have gone through the available record with their able assistance.
10. On enquiry of the Court, the learned APG who was present in the Court waived notice
and stated that he had obtained the record and the same was available with him.
11. Learned counsel for the accused/applicants argued that the accused/applicants were
innocent and had been falsely implicated in the instant case with mala fide intentions. No iota of evidence is available on record to connect the accused/applicants with the alleged commission of offence. He further contended that the accused/applicant namely Naseebullah son of Muhammad Hayat was abducted on 09.11.2021 from Zareen Jungle whic h was duly
reported in the Roznamcha of Levies Thana Noshki and after about more than two months he was falsely implicated in the instant case foisted and alleged possession of explosive
material. He further stated that there is no direct or indirect evide nce available on record to
connect the accused/applicants in the alleged commission of offence and section 103, Cr.P.C, has also been violated as no private person was associated at the time of arrest of the accused/applicants and recovery of explosive sub stances. He further contended that the
accused/applicants were neither previously involved in any case nor they had any criminal record available against them.
Learned counsel for the accused/applicants in support of his contention placed
reliance upon the case of Allah Ditta v. The State (2014 PCr.LJ 658) and Muhammad Iqbal alias Bala v. The State (1995 SCMR 342).
12. Learned APG appearing on behalf of State strongly controverted the contention of
learned counsel for the accused/applicants on the ground t hat section 7 of ATA is non-
bailable, further the explosive substances recovered from the accused/applicants were likely to be used in terrorist activities. The offence was non- bailable in nature and that the trial has
already been commenced.
13. Perusal o f record reveals that applicants have not made any disclosure before the
police witness nor during investigation anything they brought on record regarding their link with any banned organization. It appeared from the record and evidence collected by the
prosecution manifestly that the ingredients of section 7 of the Act are missing, moreover, the
prosecution has failed to bring any previous history of involvement of accused in any
criminal activity.
Apart from that it was in the knowledge of the prosecution that one of the accused
namely Naseebullah was abducted on 09.11.2021 i.e. more than two months prior to the instant case, which was duly lodged in the Roznamcha of Levies Thana Noshki by line officer Muhammad Aslam Naib Risaldar about his disappearance from Zarin Jungle, which has been authenticated through public document. During the investigation they ignored this aspect of the case, in order to dig out the truth, thus the matter requires further inquiry as contemplated under section 497, Cr.P.C. In this regard reliance is placed on the case titled as Muhammad Noman v. The State (2017 SCMR 560), Kamran Shahzad v. Sikandar Latif and others [(2014 YLR 1500 Supreme Court (AJ&K)].
Further the police has violated the mandatory provision of section 103, Cr.P .C,
despite the fact the police had adequate time with them to associate public witnesses of the locality at the time of search and recovery of explosive from the accused. The police had violated the mandatory provision of section 103, Cr.P.C, which makes the case doubtful and entitles the applicants for the concession of bail. In light of aforementioned facts and circumstances, we found the applicants to be entitled for the concession of bail. The applicants (accused) are admitted to bail subject to provid ing bond sureties in the sum of
Rs.2,00,000/ - (Rupees Two Hundred Thousand Only) each in the like amount to the
satisfaction of Additional Registrar of this Court learned trial court.
However, the above observations made herein above are tentative in nature and same
should not influence the merits of the case.
SA/172/Bal. Bail granted.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,
let us know.