This application under section 498, Cr. P. C. Is for release of petitioner Ali Mahmood on bail pending his trial in the Court of Additional City Magistrate, Court No. IX, Karachi. The facts of the case briefly are that Police Inspector Muhammad Bashir Khan of Artillery Maidan Police Station that the petitioner in conspiracy with others was engaged in subversive activities and was creating conditions endangering the public and peace received information. Pursuant to this information the Police officer proceeded to a place in front of a building known as Shirin Manzil and arrested the petitioner on 9-8-1972 at about 10 p.m. While in custody the petitioner disclosed to the police that he had kept some arms in his office situated on the ground floor of the Haroon Abdullah Trust Building, Victoria Road, Karachi. The Police party along with the Mashir Muhammad Nawaz Butt and Chaudhry Muhammad Saddiq and Mr. Nayyar Bari, the Sub---Divisional Magistrate of Katachi proceeded to Abdullah Haroon Trust Building. From the same building 3 pistols, 6 revolvers 150 rounds cartridges, 19 dynamite rods and 7 dynamite fuses were recovered. The applicant-accused had no licence for the above arms and explosives. The Mashirnama in regard to this recovery was prepared in the presence of the two Mashirs named above and Mr. Nayyar Bari, Sub-Divisional Magistrate. The original Mashirnama has been placed before me by the learned Additional Advocate-General and the same recites that the iron door of the ground floor of the building, from where the arms and explosives were recovered was opened by the applicant accused with his keys.
2. The F. I. R. Was recorded within 40 minutes of the re--covery wherein the circumstances leading to this recovery were stated. The report was registered under section 5 of the Ex--plosives Substances Act, 1908, section 13(d), West Pakistan Arms Ordinance and Rule 49/46 of the Defence of Pakistan Rules, 1971. Section 120-B, P. P. C. Was also mentioned in the column provided in the pro forma of the F. I. R.
3. The applicant had earlier moved a bail application before the, Sessions Judge, Karachi, which had been rejected on the ground that section 4 of the Explosives Substances Act was punishable to transportation for 20 years and further that under rule 210 of the Defence of Pakistan Rules, 1971, an accused person was not entitled to bail unless he could satisfy the Court that there were reasonable grounds for believing that he is not guilty of such an offence.
4. Mr. G. M. Shah, the learned Advocate for the applicant has raised the following points:----
(1) That the offence, if any, will fall under section 5 of the Explosives Substances Act, 1908 which provides for a punish--ment of five years to which a sentence of fine may be added and that the case of petitioner does not fall under section 4 of the said Act.
(2) In the alternative even if section 4 of the Explosives Substances Act is held to be applicable to the facts of this case, the offence as alleged will fall under clause (b) of section 4 of the said Act.
(3) That the offences are not punishable with transportation for life and therefore the applicant is entitled to bail, and
(4) That rule 210 of the Defence of Pakistan Rules does not apply in this case because no notification as contemplated by rule 210 (b) had been issued.
4. On the other hand the learned Additional Advocate---General has placed before me the original Mashirnama of recovery along with other documents and has further argued that the offence would fall under section 4(a) of the Explosives Substances Act. The further submission of the learned Additional Advocate-General is that even of the offences alleged are not punishable with transportation for life, regard being bad to the facts of this case'; discretion, which is the foundation for the concession of bail in non-bailable offences, should not be exercised in favour of the petitioner.
5. Although Mr. G. M. Shah attempted to argue before me on the truth or otherwise of the allegations made by the prosecu--tion against the petitioner, but on being pointed out by me that this is not the proper stage for reception of such arguments, he has contented himself by raising the plea that the offence was not punishable with transportation for life. Section 4 reads as follows:---- "Section 4. Any person who unlawfully and maliciously-
(a) does any act with intent to cause by an explosive sub--stance, or conspires to cause by an explosive substance, an explosion in Pakistan of a nature likely to endanger life or to cause serious injury to property; or .
(b) makes or has in his possession car under, his control any explosive substance with intent by means thereof to endanger life, or cause serious injury to property in Pakistan, or to enable any other person by means thereof to endanger life or cause serious injury to property, in Pakistan; shall, whether any explosion does or doss not take place and whether any injury to person or property has teen actually caused or not, be punished with transportation for a term which may extend to twenty years, to which fine may be added, or with imprisonment for a term which may extend to seven years, to which fine may be added."
6. It will be seen that if a person does any act with an inten--tion to cause by an explosive substance an explosion of a nature likely to endanger life or property, then whether the explosion does or does not take place will be punishable with transportation for life. In the present case the applicant is said to be in possession of a huge quantity of explosives and, therefore, intention can legitimately be inferred from the fact of possession itself unless the applicant can show his possession to be innocent. In fact no attempt has been made before me to show as to how the keeping of such a huge quantity of explosives could be considered to have been stored with an intention other than of causing an explosion. But even if such an intention is not established, possession of explosives by itself is an offence under section 4 (b) of the Explo--sives Substances Act for which a sentence of seven years is provided.
7. Since the evidence in this case has not been recorded, I have in conformity with the principles laid down by their Lord--ships of the Supreme Court in the case of Khalid Saigol v. The State (PLD 1961SC495refrained from conducting an inquiry in the nature of preliminary trial. Nevertheless for effective consideration of the respective contentions I have looked at the material which has been placed before me by the prosecution, that is to say by the Additional Advocate-General, so as to prime facie satisfy myself that the prosecution has tangible evidence to offer, and such evidence if left unrebutted may lead to the inference of guilt.
I have also kept in view the principle laid down by the Sup--reme Court in the case of Haji Wali Muhammad v. The State (1969PCr.LJ565In this case their Lordships of the Supreme Court have laid down the rule that in offences not' punishable with death or transportation, bail should normally be granted unless there are strong grounds in the shape of evidence for the belief that an accused person is guilty.
The learned Advocate for the applicant has canvassed before me a principle, that in cases where an offence is not punishable with transportation or death, the grant of bail is a rule. I would not agree with such interpretation of principles. I would, how--ever, say that while strong grounds have to be made out by an accused person to entitle him to bail if the said accused is charged with an offence punishable with death or transportation; in case where an accused is charged with a non- bailable offence, the grant of bail is within the discretion of the Court.
8. The question then is whether the accused can be consi--dered to be charged under section 4(a) or section 4(b) of the Explosives Substances Act and if he could be considered to be accused of an offence under section 4(b), discretion should be exercised in his favour. Section 4(a) is meant to punish a person who deals with explosives for the purpose of causing an explosion and section 4
(b) covers the case of persons who could be held to be guilty only by reason of possession. In this, case the quantity of explosives indicates that the same had been stored for causing an explosion.
It is needless to say that an explosion is always likely to cause the danger to life and property. No explanation has been offered by the accused with regard to the storage. Perhaps he may be having an explanation which he may want to place only before the trial Court and in that case a duty certainly would devolve on the trial Court to consider the same. In any case x would not pre- judge the issue as it may prejudice the trial. How--ever, the prosecution has made an allegation with regard to con--spiracy and such an allegation is clearly relatable to section 4(a) of the Act which provides for punishment of transportation for life.
In the other case, if the possession of explosives is not with intention of causing explosion I have considered whether this would be a fit case in which judicial discretion should be exercised in favour of the applicant. In this case 19 dynamite rods, 7 dynamite fuses and 17-- span of safety fuses were found. Such a huge quantity of explosives cannot normally be regarded as having been stored innocently. Moreover, the explosives, as alleged, have been found from a building in a crowded locality as Victoria Road in the City of Karachi. Even if possession of the explosives may be considered to be devoid of an intention to a cause an explosion, the same did really endanger life and pro--perty. Under these circumstances I am not inclined to exercise discretion in favour of the applicant.
9. No attempt has been made before me by the learned Advocate for the applicant to show that premises from where the explosives were recovered were not in possession of the applicant. In fact I invited the Advocate for the applicant to state if that was so, but he informed me that although the building from where the explosives are alleged to have been recovered is a Trust Building, the Trust having been created by the grand-father of the applicant; he could not state as to whether the premises were in occupation or tenancy of some other person. However, the question of possession will bane to be determined, by the trial Court. Suffice to say that the Mashirpama of recovery also shows that five cheque books of the petitioner were also found and seized by the Police from the premises. The learned Advocate-General has also placed before me copies of two other documents. First of these documents is an application made by the Superintendent of Police, East Division, Karachi, on 9th August 1972, addressed to the Deputy Commissioner, Karachi, for issuance of a Search Warrant and in this application the same premises have been described as the one from where the recovery is alleged to have been made. On this application the District Magistrate had ordered search. The other document placed before me by the learned Additional Advocate-General is an application made by the Advocate for the applicant in the trial Court for a direc--tion to the Police to restore possession of the premises to the applicant. It seems that the Police bad seated the premises after the recovery. These are definitely circumstances which will have to be evaluated by the trial Court during the trial. I have referred to them only for the purpose of arriving at a tentative conclusion to enable me to dispose of this Bail Application. At present at least I can say that the prosecution has tangible material for trial of the applicant.
10. The next charge against the applicant is one under rule 46/49 of the Defence of Pakistan Rules. 7 These Rules provide for the punishment to a person doing any prejudicial act. Preju--dicial act is defined in Rule 42 (6) of the said Rules. It only means that if an act is likely to prejudice maintenance of peaceful conditions in any area included in Pakistan, the same shall be deemed to be a prejudicial act. The keeping of explosives is likely to prejudice peaceful conditions. However, the learned Advocate- General candidly conceded before me that a Notifica--tion as required by rule 210 (b) had been issued only subsequent to the date of this offence. Since I am rejecting this Bail Applica--tion on the ground that the applicant is not entitled to bail in respect of charge under section 4/5 of the Explosives Substances Act, it is not necessary to enter into the question of validity of the charge under the Defence of Pakistan Rules.
11. The next grievance of the petitioner is that in spite of his having remained in custody for more than four months, his case has not proceeded. I asked the learned Additional Advocate General as to why this delay has been caused and he has assured that the prosecution will proceed with the case expeditiously.
12. While rejecting the Bail Application I direct that the trial Court shall proceed with this case expeditiously and it shall be satisfactory if the case is disposed of within four months.
13. I also observe that whatever is stated by me in this order, must necessarily be construed as expression of a tentative nature. I must say that the trial Court should not in the least keep these observations in view while deciding the case. I also state that it shall be open both to the Trying Magistrate and the Sessions Court to enlarge the applicant on bail if the evidence that is recorded hereafter, is found to be of a nature as may entitle him to bail.