' QALANDAR AL! KHAN, J.---Accused/petitioners, Muhammad Dan Gul and Wajid Gul, have been arrested in case FIR No. 949 dated 01.11.2014 under section 15 A.A KPK/170/171/120-B, P.P.C. Read with Section 7 ATA, Police Station, City, Hangu, and are seeking post-arrest bail after they were refused bail by the learned trial court/Anti-Terrorism Court, Kohat Division, Kohat, vide order dated 19.11.2014.
2. The facts of the case, revealed in the FIR, would show that complainant, Khan Ullah SHO, Police Station City Hangu, had received information about presence of some miscreants belonging to TTP Orakzai Agency in the house. Of co-accused, Muhammad Raheem, in Order to commit acts of terrorism either prior to or during procession of "Muharrm-ul-Haram". The complainant alleged that the said Muhammad Raheem was a member of TTP group and that these people were using official uniform, therefore, as a preventive measure, raid was conducted by police party and elite force headed by the complainant/SHO on the house of Muhammad Raheem, who alongwith other miscreants managed to make good his escape; but his house search led to recovery of a Kalashnikov along with fixed and spare chargers and 50 rounds, dunger bore and one rifle dunger and 119 rounds of dunger bore, and also a cloth bag containing 260 rounds of 7.62 bore, besides army uniform. The present accused/petitioners have been shown to have been arrested from "baitak" of the said Muhammad Raheem alongwith recovery of Kalashnikov and fixed charger with 25 rounds of 7.62 bore from accused/petitioner Muhammad Dan Gul and one Kalashnikov with fixed charger and 50 rounds from accused/petitioner Wajid.
3. Arguments of the learned counsel for the accused/petitioners and learned State Counsel heard, and record perused.
4. During arguments, the learned counsel for the accused/petitioners vehemently contended that the FIR would show that the main and serious allegation of belonging to TTP and presence of the miscreants/terrorists in the house of Muhammad Raheem, allegedly, himself a member of TTP, for the purpose of committing acts of terrorism on the eve of "Muharram-ul-Haram" has been leveled against Muhammad Raheem and his other companions who, according to the FIR, made good their escape and could not be apprehended by the police after a raid was conducted on the house of the said Muhammad Raheem. According to the learned counsel for the accused petitioners, the allegations against the accused petitioners are simply their presence in the "baitak" of the said Muhammad Raheem and recovery of Kalashnikov with rounds of 7.62 bore from their possession.
5. The learned A.A.G, on the other hand, contended that the accused/petitioners are also members of the terrorist group, and their presence in the "baitak" of Muhammad Raheem point towards their conspiracy to commit acts of terrorism on the occasion of "Muharram-ul-Haram".
6. The record shows that the complainant/SHO claimed in unambiguous terms in the FIR that Muhammad Raheem alongwith other miscreants managed to flee from the house of Muhammad Raheem at the time of raid of the house by the police, while the accused/petitioners were arrested from the "baitak" of the house and recovery of Kalashnikovs with rounds were made from them. It needs be stressed here that despite the fact that complete challan has been submitted in the case, there is nothing on the record to show previous record of involvement of the accused/petitioners in terrorist activities or their association with the terrorist group i.e. TTP.
Besides, the army uniform was also recovered from the house of Muhammad Raheem, while no such recovery was made from the accused/petitioners. Needless to say that there is nothing on the available record- to show involvement of the accused/petitioners in the conspiracy to commit acts of terrorism.
7. In such a situation, the accused/petitioners, at the most, can be saddled with the charge of having in their possession unlicensed arms and ammunition under section 15, Khyber Pakhtukhwa Arms Act, 2013, prescribing maximum punishment of imprisonment for 7 years or with fine or with both, thus falling outside the scope of prohibitory clause contained in section 497, Cr.P.C. Besides, it is now well established that where there is alternative provision of imposition of fine, bail should be granted as of right.
8. In view of the above explained circumstances, when rest of sections of law are, prima facie, not attracted to the case of the accused/petitioners, their case appears arguable for the purpose of bail, as their nexus with conspiracy for commission of terrorist acts would, indeed, be subject to further inquiry. Above all, investigation in the case is complete and accused/petitioners were no longer required to the police/prosecution for the purpose of investigation.
9. Consequently, on the acceptance of instant application, both the accused/petitioners are admitted to bail, provided they furnish bail bonds in the sum of Rs. 100,000/- each with two sureties each in the like amount to the satisfaction of trial court/duty Magistrate, who shall ensure that sureties are local, men of means and reliable.