1. ' SAJJA D ALI SHAH, C.J.--- Four applicants have applied for bail, who are facing trial for offences under sections 392, 397 and 398, P.P.C. And 17(3) of Hudood Ordinance, in the Special Court at Hyderabad, set up under the provisions of Suppression of Terrorist Activities Act, 1975. Their bail plea was rejected by the Special Court vide order, dated 8-3-1990. According to F.I.R. Incident took place on 17-1-1990 at 8-30 p.m. In the house of complainant, Esar Ahmed alias Khan Sahib in Gari Khata, Hyderabad. Complainant along with other inmates of the house was watching T.V. When three persons came in from whom one was armed with Kalashnikov and the other two had mausers. On gunpoint they took away V.C.P. V.S.P2OTV Black Color and snatched coat of complainant containing Rs,2,600 and demanded key of Almirah. Culprits took away Rs,65,000 in paper bags which were kept there by the complainant. Accused persons went away in red Suzuki Van No,855- 583 in which one person was sitting on the rear seat. Complainant filed F.I.R. At Police Station City at 9-30 p.m. In which description of culprits is given. All the four applicants were arrested on 27-1-1990 in connection with recoveries of unlicensed arms and thereafter were shown as having been arrested in this case. Rs,8,000 were recovered from applicant Javed Shaikh and V.C.P. And Rs,1,800 were recovered from applicant Wahced alias Guddo. Rs,8,000 and one big mouser was recovered from applicant Abdul Hamid and Rs,11,000 and one T.T. Pistol were recovered from applicant Salim Hussain.
2. Bail plea is urged on the ground firstly that Mashirs of recoveries are police officials as such cannot act as Mashirs in violation of section 103, Cr.P.C. If that is so, then in the trial Court when Investigating Officer will be examined, questions can be put to him as to why police officials have been made as Mashirs instead of men from public. Additionally there is abundant case-law on the point that even if evidence of Mashirs is not accepted then evidence of Investigating Officer can be relied upon as independent evidence.
3. ' Another ground on which bail plea is urged is that identification cannot be relied upon for the reason that memo. Of identification test was not submitted along with challah. If this is correct then it would amount to an irregularity which is curable under section 537, Cr.P.C. On the other hand record shows that on the following day of arrest identification test took place supervised by Magistrate First Class and eye-witnesses correctly picked out all applicants in the test. All formalities required for such test were observed. Description of applicants was given in F.I.R. And statements under section 161, Cr.P.C. Of the witnesses. On the face of it, this is strong evidence in favor of prosecution until it is assailed in the trial Court at the stage of evidence in cross- examination.
4. ' Third ground urged for bail is that no weapon was recovered from applicants Javed Shaikh and Wahid. This lapse on the part of prosecution would not make the case of these two applicants any better for grant of bail for the reason that even otherwise there is enough material available with prosecution against them such as that their description is given in F.I.R. And 161, Cr.P.C. Statements and they were correctly picked out in identification test and other recoveries were made from them which tend to connect them with commission of crime alleged against them.
5. ' Material collected by prosecution of incriminating nature against applicants as mentioned above is sufficient on the basis of which it can be said that there are reasonable grounds for believing that applicants have been guilty of scheduled offence and are not entitled to bail as contemplated under section 5-A(8) of Suppression of Terrorist Activities Act, 1975. In the instant case, applicants are being tried for scheduled offences under special law and bail plea is to be considered in conjunction with section 8 of the said Act, which shifts burden of proof on the accused. Secondly, offences with which applicants are charged are of serious nature and section 392, P.P.C. Is punishable with 10 years and sections 397 and 398, P.P.C. Are punishable with 7 years.
6. ' One other point urged on behalf of the applicants is that section 13-D of the Arms Ordinance has been made a scheduled offence for trial by the Special Court set up under the provisions of Suppression of Terrorist Activities Act, 1975 by Ordinance XVI of 1988 on 12-10-1988, which has lasted for 4 months and has expired and before that date, the same is not converted into Act. Learned A.A.-G. Has submitted in this context that reference can be made to Article 89 of the Constitution of Islamic Republic of Pakistan which envisages that the Ordinance so promulgated is to be laid before National Assembly before the date of expiry and after that Ordinance so laid, is to be deemed to be a Bill introduced in National Assembly. It is further submitted by him that in the instant case, this has been done already. In any case, it is submitted by the counsel present at the Bar that on this point Constitutional Petitions have also been filed, which are pending in the High Court, in which this question will be discussed in detail for final adjudication. In the instant case, we are dealing with bail application, which is filed in the ordinary course as bail plea is rejected by the trial Court. In the absence of decision on the point of legal position of the Ordinance, which has made offence under the Arms Ordinance a scheduled offence, bail application can be disposed of on the basis of other offences such as sections 392, 397 and 398, P.P.C. And bail plea is rejected on the ground that there is sufficient material available with prosecution in support of the charge for offences in the light of facts and reasons mentioned above. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.