' CH. IFTIKHAR HUSSAIN, J.---Petitioner Ijaz Mahmood alias Jajju through the instant petition has sought for post-arrest bail in case F.I. R. No,627 registered under section 13 of the Arms Ordinance XX of 1965 and section 4 (b) of the Explosive Substances Act, 1908 with Police Station Islampura, Lahore on 29-6-2009.
2. Briefly the prosecution case as per the F.I.R. Is that on 29-6-2009 at about 5-45 p.m. Ijaz Mahmood alias Jajju was apprehended by a police party headed by Rasheed Saleem, S.-I. Of Organized Crime Kotwali, Lahore and from his right hand a 30-bore pistol and a bag hanging on his left shoulder were recovered. On the search of the bag, a white colour shopper containing three KG explosive substance and half KG ball bearings were recovered, He told his connection with defunct organizations Jaish-e-Muhammad and Tehrike-e-Taliban and that he along with companions had wanted to damage the important installations and create terror through explosion.
3, It has been contended on his behalf that he is young boy aged about eighteen years and has no connection with any of defunct terrorist organizations; that the police apprehended him from his house much prior to the alleged incident and this has reflected so been in the media and a clipping from daily newspaper 'Express' showing his apprehension from his house at the hands of a police team is annexed to the petition; that they took him to an unknown place and subjected him to torture and thereafter handed over him to Lahore Police and they involved him in the instant case falsely; that no explosive substance was recovered from him and the alleged recovery is fake and planted one; that there were sought different reports for from the Government agencies as regards the nature of the alleged recovered substance and. It was reported therefrom in different ways and majority of these reports were to the effect that the matter recovered from him did not contain explosive substance and so, his case requires further inquiry into his guilt; that he is behind the bars for the last about ten months and is being not produced before any Court for the last about two months and so, his detention is illegal; that unless the offence is not proved against him, he would be deemed to be innocent and cannot be detained unnecessarily any longer; that another case of the type against him was registered with the same Police Station but the same has been cancelled and this shows that this is all manipulation and fabrication on the part of the police to involve, him; and that he is previous non-convict.
4. Converse to that learned DPG has opposed the petition on the ground that he is named in the F.I,R; that the police have no malice against him to involve him falsely in the instant case; that the explosive substance in the above-mentioned quantity was recovered from him; that he on the basis of the statement of two witnesses namely Nisar Ahmad and Muhammad Asif is implicated with the charge against him; that it is a heinous crime and such people cannot be let loose on the society showing them indulgence in the matter.
5. I have carefully considered the submissions made on behalf of the parties and perused the record.
6. Allegedly, on the above said date, time and place, a pistol, three KG explosive substance and half KG ball bearings were recovered from his possession, which he had intended to use to damage the important Installations and create terror among the public and that he belonged to the aforesaid organizations. Learned D.P.G. Has frankly conceded, on query, that there is no proof or material available on the record against him of his any connection with any of the above-named terrorist organizations.
7. It may be mentioned here that the S.-I., present in Court, has also admitted that another case bearing F.I.R. No,628/ 2009 against him of the type was registered with the above-mentioned police station but the same has been cancelled during the investigation.
8. It is important to note here that Court is to be vigilant in safeguarding the liberty of the citizens and it should see that no one is unnecessarily punished, unless there is proof of his crime.
9. It is also interesting to note that in the instant bail petition, three different reports of the expert regarding the nature of the alleged recovered explosive substance have been given mentioned in ground (c) of the same. These would be quite advantageous and helpful to reproduce the same herein for fair disposal of this petition. These read as under:--
(I) By Single Bomb Disposal Technician:-- "1. There is no any content of Explosive.
2. These are Ball Bearing".
(II) By Four Bomb Disposal Technicians: "The material/dead chemical resembling with explosive was not detonated during testing procedure. The pieces of iron/ball bearing can be used in terrorist activity with any type of explosive.
(III) By the Secretary, Pakistan Ordnance Factory Board:-- "(i) None of the sample detonated when initiated with electric detonator.
(ii) Material is non-flammable. It melted when exposed to flame.
(iii) No explosive contamination found in any of the sample.
(iv) The ingredients are ordinary chemicals available in open market for general purpose use.
(v) These can be converted into pyrotechnic composition with special methods and process but these cannot be used as explosive by ordinary means".
10. Learned DPG has admitted that such reports are available on the police record and the reproduction of the same in the bail petition is not in any in variation to the actual ones. The perusal of these reports put one to guard to believe the nature of the alleged recovered substance.
Report No,1 by Single Bomb Disposal Technician suggests that there is no any contents of explosive in the substance sent to him for analysis and these are ball bearing. The para Nos.Iv and v. Of the third report by the Secretary, Pakistan Ordnance Factory Board suggest that the ingredients are ordinary chemicals available in open market for general purpose use and these can be converted into pyrotechnic composition with special methods and process but these cannot be used as explosive by ordinary means.
11. In presence of these reports of three different Government agencies, it is yet to be determined that, if he ultimately B can be held liable for the alleged offence. Hence, from this angle, his case definitely calls for further inquiry into his guilt.
12. I may mention here that the bail cannot be withheld as punishment in advance. It is also well settled proposition in criminal administration of justice that mere heinousness of offence is not enough to decline the relief of bail, when an accused, may otherwise, be found entitled to the same and an accused may be deemed c to be innocent unless proved otherwise. His case, thus, falls within the mischief of subsection (2) of section 497, Cr.P.C.
13. He is stated to be behind the bars for the last about ten months. The S.-I., present in Court, has frankly admitted that he has been informed by the Naib Court of the learned Judicial Magistrate concerned that he is not being produced from Jail for the last about two months due to law and order situation. Hence, his detention at the moment is also under serious question that whether it is in violation of the provision of section 344, Cr.P.C. Anyway, I would avoid to dilate any further upon this aspect of the matter, as it is hardly required here.
14. It may also be mentioned here that it is also well settled proposition in law that when case of an accused may be covered under subsection (2) of section 497, D Cr.P.C. Calling for further inquiry into his guilt, then he becomes entitled to bail as of right and not mere grace.
15. He is also stated to be a previous non-cpnvict.
16. Hence, for all such reasons', I have been persuaded to hold that he has a case for bail.
17. I, therefore, accept this petition and admit him to bail subject to his furnishing bail bonds in the sum of Rs,5,00,000 (Rupees five lac only) with two sureties each in the like amount to the satisfaction of the learned trial Court.
18. However, it is hereby clarified that the above observations are tentative in nature and meant only for the disposal of the matter in hand. These shall have no bearing at all on body's case at trial.