1. 'Applicants Abdul Ghani, Khalil Ahmed, Abdul. Rauf, Adil Ahmed, Irfan Irshad and Muhammad Ashab alias Kashif are facing trial in a case arising out of F.I.R. No,76 of 2004 of Police Station Baloch Colony, Karachi for offence under sections 4/5 Explosive Substances Act.
2. ' The bail plea of the applicants was dismissed by the learned VIIth Additional Sessions Judge, Karachi South vide order dated 2nd June, 2004.
3. ' The prosecution story as enunciated in the F.I.R. Is that on 12-4-2004 F.I.R. Bearing No,76 of 2004 was registered at Police Station Baloch Colony upon a written statement under section 154, Cr.P.C.
4. Sent by S.-I. Ch. Muhammad Afzal through A.S.-I. Ghulam Shabbir, disclosing therein that on the eventful day while he along with his party A.S.-I. Zafar Iqbal, S.-I. Ghulam Shabbir, H.C. Muhammad Arshad and H.C. Liaquat Ali were busy in connection with and in search of case properties and accused persons, a spy information was received at Gujjar Chowk that some persons relating to Harkat-ul-Mujahideen AlAlameen/banned Jihadi Organization were gathered for planning some terrorist activities in the city. On receipt of such information, the complainant party after arranging witnesses namely Muhammad Naeem, A.S.-I. Zafar Iqbal along with other mobile party on the pointation of spy encircled a house bearing No,16, Sector-G, Punjab Road, Manzoor Colony, Karachi.
5. It is further disclosed in the F.I.R. That from the sub-street door they climbed over the roof without making noise and saw that six persons were available on the roof inside the boundary wall, sitting on the mattress facing each other and were engaged in earnest and secret conversation. A blue colour plastic pouch wrapped an newspaper containing something inside was also seen lying on the mattress. However, the accused persons were taken into custody and search of whom was conducted in presence of the witnesses whereupon from Abdul Ghani a mouser was recovered from his Shaiwar, pistols of .30 bore were recovered from Adil Ahmed, Khalil Ahmed, Abdul Rauf, Muhammad Ishaq alias Kashif and Irfan Irshad, respectively. Upon search of blue pouch lying on the mattress four handgrenades, four fuses, four timers (explosive material) were recovered. In response to the query, none of the accused was able to produce any licence for keeping the arms and ammunition and other explosive material. Accordingly, they were arrested and case under sections 4/5 of Explosive Substances Act was registered against them. Separate F.I.Rs, against each of the accused persons were also registered under the Arms Ordinance.
6. ' The investigation followed and in due course police submitted challan on 26-4-2004 and thereafter also got sanction from the competent Authority i,e, Home Department, Government of Sindh, on 23rd June, 2004.
7. ' I have heard Mr. Muhammad Ilyas Khan, learned counsel for the applicants, and Mr. Habibur Rasheed, learned counsel appearing on behalf of the State.
8. ' It has been contended by the learned, counsel for the applicants that case against the applicants is false. It has, further been contended by the learned counsel for the applicants that perusal of the contents of the F.I.R. Reveals that apart from the F.I.R., and registered under sections 4/5 of the Explosive Substances Act, 1908. Police has also registered separate F.I.Rs, against each of the accused persons under the Arms Ordinance. According to him. Prosecution Agency has applied the provisions of Explosive Substances Act, 1908 as well as Pakistan Arms Ordinance without taking into consideration the facts as to under which Statute the accused persons could be' tried and what was the maximum sentence which an accused person is charged for under the provisions of two different statutes or Laws. He has further contended that in that eventuality the settled principle is that the case shall proceed against the accused person under the law which provides lesser punishment for the offences alleged to have been committed by him. He has referred to the case of Muhammad Younus and another v. The State 2001 PCr.LJ 157 in support of his contention.
9. ' Learned counsel has next argued that according to Mashirnama of arrest the numbers of four grenades and their fuses that had, allegedly, been recovered from the place from where the accused persons (the present applicants) have allegedly been arrested, have not been mentioned. Furthermore, nowhere it is stated that grenades were in sealed cover and after examining them they were sealed. He has referred to the case of Bihar Ali v. The State 2002 PCr.LJ 124 in support of his contention.
10. ' It has, further been contended by the learned counsel that the word "Explosive Substance" has been defined in section 2 of the Explosive Substances Act, 1908 which contains that any material for making any explosive substance, any apparatus, machine, implement or material used or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; also any part of any such apparatus, machine or implement and thus, it is yet to be seen that the position of rusted grenades or a substance alleged to be explosive without any proof would not fall within the definition of "Explosive Substance". It has, also been contended that according to legal and well-recognized rule of ejusedem generic is interpreted in the light of the foregoing examples of explosive and definition of `ammunition' in section 4 of the Explosive Substances Act includes only such explosive or fulminating material as could be used for any military purpose or in particulars for fire-arms or torpedoes or war rockets or for mining or blasting.
11. It has, also been contended by the learned counsel that applicants namely Abdul Ghani, Adil Ahmed, Irfan and Irshad were arrested between the night of 1st and 2nd April, 2004 from their house whereas applicant Khalil Ahmed was arrested on 2nd April, 2004 at about 5-30 p.m. While he was present at his shop and subsequently, his brother was also detained/arrested in C.I.A., Saddar when he went there to inquire about his brother's arrest. According to him, such fact was also reported in different newspapers of different dates. He has, further contended that such, false involvement was also apprised to the high ups including Prime Minister of Pakistan. It has, also been contended by the learned counsel that possession of the grenades is punishable under the Pakistan Arms Ordinance, 1965 as the same has been included within the definition of 'ammunition' as defined under section 3(a)(vi) of the said Ordinance. It has, further, been contended that perusal of challan shows that all the witnesses are police officials except one namely Muhammad Naeem whose house number even has not been mentioned neither in the challan nor in his statement recorded under section 161, Cr.P.C. And this lacuna leads us to understand that the said witness is a stock-witness of prosecution. In such a situation he has submitted that when the accused were arrested long before date of alleged occurrence, recovery of grenades from the place from where the applicants have, allegedly been shown to be arrested, was not witnessed by any independent witness though police officials, no doubt, were as good witnesses as any other from the public but when in a case the very occurrence on the alleged date and spot was highly doubtful, recovery of incriminating material in the absence of independent witness, had to be seriously looked into. He has referred to the case of Aftab Ahmed v. The State 2004 M LD 1337 in- support of his contention. He further added that it is a matter of record that Mr. Gul Hameed Samoo, D.S.P. Firstly investigated the matter and declared that it is a false case and therefore, he did not challan the applicants on account of which he was suspended but his successor, while challaning the applicants, has tried to prove that prosecution has established a case. In such a situation, he submits that these facts lead that the case comes within the definition of section 497(2), Cr.P.C. On all these scores, he prayed that the applicants have been entitled to the grant of bail.
12. ' On the other hand, learned counsel for the State has opposed the grant of bail on the grounds that the applicants have committed an offence punishable under sections: 4/5 of Explosive Substances Act, punishment of which goes upto life imprisonment and therefore, this case comes within the definition of the prohibitory clause. However, he could not substantiate his arguments on the point of delayed arrest.
13. ' I have given my anxious consideration to the arguments of the respective parties and have also perused the record.
14. ' Perusal of the F.I.R. Reveals that the applicants were arrested red handed while they were making plan for creating chaos in the city by taking the circumstances to the terrorism which is increasing day by day and the lives of the innocent persons have been scaled at risk. Furthermore, the incriminating articles recovered from the possession of the applicants, having been dangerous explosive material, which can easily be used for terrorism. So far as the contention and the case- law relating to the point that when the accused is challenged under two Statutes it is to be determined whether accused persons could be tried under lich A Statute and what was the maximum sentence which an accused person is charged for under the provisions of two different Statutes or Laws is concerned, it may be observed here that the prosecution has applied the Arms Ordinance upon the incriminating articles i,e, mouser and pistol etc. Recovered from the applicants whereas sections of Explosive Substances Act have been applied for the recovery of hand grenades.
15. ' In view of what has been discussed above, I am not inclined to admit the applicants on bail and therefore, their bail application is dismissed.
16. ' Cr.B.A. No,554 of 2004 stands disposed of. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.