1. By this Crl. Bail Application, the applicant Mujeeb Khan seeks his post arrest bail in case FIR No, 338/2011, under Sections 4/5 of the Explosive Act of Police Station CID, Sindh.
2. The facts briefly stated in the FIR are that on 01.08.2011 at 1030 hours Inspector Raja Khalid Mehmood lodged report stating therein that he alongwith police party arrived at Northern Bypass near Lucky Pahari, Mauripur Road in presence of witnesses namely Muhammad Mukhtiar and ASI Shahzad, arrested the applicant/accused Mujeeb Khan alongwith his companion. From the applicant/accused one Rocket Launcher alongwith two rounds (Gole) were recovered. All the recovered weapons sealed and taken into custody.
3. It is, inter-alia, contended by the learned counsel for the applicant that the applicant is innocent and has falsely been involved in the crime in question and recovery of alleged weapons has been foisted upon the applicant. He further contended that the co-accused persons namely Jawed Ali, Muhammad Ali and Aftab Ali have already been granted bail by this Court vide order dated 29.08.2011 and another co-accused Muhammad Imran has been granted bail vide order dated 27.10.2011 nominated in the same FIR on similar role assigned to them in the alleged FIR so that the present applicant is also entitled to bail on the Rule of Consistency. The co-accused persons, who have already been granted bail by this Court, recovery of arms and ammunitions have been shown in a single/joint memo. of arrest, recovery and search enclosed with the statement filed on 26.03.2012 by the learned counsel for the applicant. He has placed reliance upon the case of Khadim Hussain vs. The State (1983 SCMR 124), Muhammad Afzal us. The State (1979 SCMR 09), Tariq Bashir us. The State (PLD 1995 SC. 34) and Fida Hussain vs. The State (NLR 2002 Cr. 15).
4. Learned APG opposed the bail plea of the applicant, but has not been able to controvert the fact of Rule of Consistency, as all the co-accused persons have already been released on bail granted by this Court.
5. I have heard the learned counsel for the applicant as well as learned APG and perused the entire record available before me with their able assistance.
6. It appears from the record that the present applicant was arrested alongwith his companions on 01.08.2011 and recovery of arms and ammunition has been effected, but not sealed at the spot by police, as upon perusal of letter dated 12.08.2011 sent by Inspector Najabat Shah of CID/AEC, Sindh requested to the SSP Security Special Branch for deputing the Expert of Bomb Disposal Squad to defuse the Rocket Launcher and two rounds (Gole), which reflects that the recovered weapons were not in the sealed position. On further perusal of the letter dated 17.08.2011 of the Bomb Disposal Squad, the weapons in question have been inspected, by them, sealed the same and handed it over to the Investigating Officer. It is further revealed from the record that from the date of arrest of the applicant and recovery of alleged weapons i,e, 01.08.2011, the recovered weapons have not been sent to the Ballistic Expert for opinion and kept the same in the Police Station for no reason.
7. Neither any material is available on record nor in Police Papers, which shows that the Investigating Officer took necessary permission for holding trial under Explosive Substances Act, 1908 as required under Section 7 of that Act, which was mandatory and condition precedent for prosecution of accused under Section 5 of the Explosive Substances Act, 1908, from the concerned quarters.
8. On 15.2.2012, notice was ordered to be issued to the I.O./Inspector Raja Khalid Mehmood to appear in Court alongwith entire record of the investigation, failing which, beside the departmental proceedings to be recommended, action for insubordination of the directions of the Court would be initiated against him. Again on 23.02.2012 notice was repeated upon the I.O./Inspector Raja Khalid Mehmood with the directions as contained in the order dated 15.02.2012 for the next date of hearing. Again 13.03.2012, notice was repeated to the I.O./Inspector Raja Khalid Mehmood with the same directions as contained in the orders passed on 15.2.2012 and 23.2.2012. The conduct of the I.O./Inspector Raja Khalid Mehmood shows his mala fide that he chose not to appear before this Court.
9. It may be observed that no doubt while raiding by the police to arrest the culprits, their lives are, at stake, it is not understandable that after arrest of the culprits due to lack of expertise, training and lack of knowledge of law and procedure, the Police Officers/Investigating Officers make mistakes in the law and procedure, which goes to the benefit of the culprits and they get released on bail by taking advantage of lacunae on the part of the police.
10. For the reasons disclosed, the case against the applicant calls for further enquiry as contemplated under sub-section (2) of Section 497, Cr.P.C. Bail is allowed to the applicant. He shall be released on bail subject to his furnishing two sureties in the sum of Rs, 2,00,000/- (Rupees Two Lac only) and PR Bond in the like amount to the satisfaction of the learned trial Court.
11. Needless to mention here that the observations made herein above are tentative in nature and the learned trial Court shall not be influenced and passed the judgment on merits.