' MUHAMMAD TASNIM, J.---Applicant was booked in Crime No,130 of 2011 Police Station CID Sindh, Gadap Town, Karachi, under sections 4/5 Explosive Substances Act, 1908. In the first place applicant applied for bail before learned 2nd Additional Sessions Judge, Malir Karachi who per order dated 11-7-2010 dismissed the bail application, against aforesaid order present bail application has been filed.
2. The facts as stated in the F.I.R. Are that on 2-4-2011 Inspector Ali Murad Charan posted at CID Sindh Karachi while interrogating the applicant in Crime No,127 of 2011 under sections 353, 342, 34 P.P.C., F.I.R. No,128 of 2011:under sections 4, 5 and 6 Explosive Substances Act and in Crime No,129 of 2011 under section 13-D of the Arms Ordinance 1965, claimed that during investigation applicant disclosed that he has concealed explosives in his house situated at Siraj Ahmed Goth, Kathore, district Malir. On his statement the applicant along with two witnesses HC Arshad and PC Usman went to that place and entered in compound where from a room recovered on the pointation of the applicant, explosives including 3 number of electric detonators, anti-tank mines, 87 explosive rods, 6 number of remote detonating device and 1 BM. All the recovered articles were sealed and Mashirnama was prepared.
3. Learned counsel for the applicant has submitted that Crime Nos.127 of 2011, 128 of 2011, 129 of 2011 so also the present one, were registered within 2 hours of the alleged occurrence. Learned counsel further says that in Crime Nos.127, 128 and 129 the applicant has already been enlarged on bail.
Learned counsel further says that police with mala fide intentions, has implicated the present applicant in the present crime otherwise alleged recovered substance in the present crime would have been subject matter of Crime No,128 of 2011 which has been registered under the Explosive Substances Act. Learned counsel says that immediately after lodging of the F.I.R. The present applicant had made applications to honourable Chief Justice of Pakistan, learned. Sessions Judge, Karachi South, Sessions Judge Malir, Inspector General Sindh, Secretary Home Department, Government of Sindh and SSP Investigation for fresh investigation in the matter. He further says that apart from the above, applications by the residents of the village have also been preferred to the I.G. Sindh stating therein that present applicant was arrested between the night of 31-3-2011 and 1-4-2011 from his house from the village and police has implicated the present applicant in the alleged crime falsely. Learned counsel says that entire alleged recovered substance has been foisted upon the applicant. The alleged recovery has been shown to have effected from the village but no resident of the village has been cited as mashir. He further says that the arrest of the applicant has been shown near Police Station Nabi Buksh but arrest memo also does not show the association of private witnesses. Learned counsel says that provisions of section 103 of the Criminal Procedure Code have been violated in this case, for this reason he says that recovery is doubtful and the applicant is entitled to bail. Learned counsel for the applicant has submitted that distance between arrest of applicant and the place of recovery is 40 KM but F.I.R. Has been lodged within 1 hour and 30 minutes. In support of his contentions learned counsel has placed reliance on 2009 PCr.LJ 727 (Younus alias Madi v. The State), 2008 YLR 1888 (Shama Khel and 2 others v. Yousaf Ali Khan and another), 2009 PCr.LJ 786 (Muhammad Dilshad v. The State) and 2008 M LD 185 (Muhammad Arif. Baig v. The State).
4. On the other hand, learned Deputy Prosecutor-General has vehemently opposed the grant of bail and he has submitted that there is ample material available with the prosecution which connects the present applicant with the commission of offence. She further says that huge quantity of explosive were recovered, Mashirnama was prepared on the spot in presence of two police witnesses. She further says that applicant is involved in crime against society, hence he may not be enlarged on bail as there is likelihood that on coming out from the prison, he may commit similar offence. In support of her contention, learned D.P.-G. Has relied upon 2005 PCr.LJ 215 (Abdul Ghani and others v. The State).
5. I have heard the learned counsel for the parties and have perused the record so also the case- law cited by them.
6. It is an admitted position that the applicant was in custody in Crime Nos.127, 128 and 129 of 2011. It is also an admitted position that during the interrogation on his pointation the alleged recovery was effected about 40 KM away from the place of interrogation. It is also an admitted position that within one and half hour the present F.I.R. Was lodged. It is also an admitted position that in Crime Nos.127, 128 and 129 of 2011 applicant was booked on 2-4-2011 and has already been enlarged on bail by the Courts of competent jurisdiction. Since the alleged recovery has been shown to have been made on the pointation of the applicant from a village and there are number of residents available in the village but no single person has been shown as witness from the vicinity.
Apparently provisions of section 103 of the Criminal Procedure Code have been violated. In the case of State v. Bashir PLD 1997 SC 408 the honourable Supreme Court while dealing with the provisions of section 103, Cr.P.C. Has observed as under:-- "As regards the above second submission of Mr. M.M. Aqil, it may be observed that it has been repeatedly held that the requirement of section 103, Cr.P.C. Namely, that two members of the public of the locality should be Mashirs to the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two Mashirs from the public. In this regard, it will suffice to refer to a recent Judgment of this Court in the case of Mushtaq Ahmed v. The State PLD 1996 SC 574. In the case in hand, SIP Muhammad. Rafique has not been able to give any cogent explanation as to why he was unable to secure two Mashirs from the public."
7. Applying the above rule to the present case it may be noted that no private witness as required under section 103, Cr.P.C. Has been shown as mashir which makes the recovery doubtful and entitles the applicant for concession of bail on this ground alone. Apart from the above contents of application made by a large number of residents of the village to the I.G. Sindh shows that the applicant was arrested from his house from the village between the night of 31-3-2011 and 1-4-2011 and he has is not involved in any criminal activity also creates doubt_ All such material which is available on record makes the case doubtful. In the circumstances, the applicant has successfully made out a case for grant of bail. Accordingly the applicant is admitted to bail on his furnishing solvent surety in the sums of Rs,100,00 and PR bond in the like amount to the satisfaction of the Nazir of this Court.