MUHAMMAD ASIF JAN, J.- Abdur Razzaq petitioner was arrested on the 31st of January, 1995 in pursuance of a case registered ride First Information report No. 523. Dated the 30th of November.
1994. Under sections 4 and 5 of the Explosive Substances Act of 1908. Read with section 13-B of the Arms Ordinance. 1965. At Police Station Burj Wala, District Sahiwal, regarding an occurrence which took place on the 30th of November. 1994 at about 8-10 a.m. In the area of Chak No. 52/5-L, which is about 22 kilo meters from Police Station Burj Wala, District Sahiwal.
2. The petitioner was trying to sell unwittingly what was in reality a bomb at a shop of a local old hardware dealer(.... ). It seems that both the seller and the buyer were totally ignorant about what they were dealing with. The mere fact that all of them were trying to break open the explosive substance in question with a crude use of a hammer, is clearly indicative of the fact that they were not aware of the consequences that would ensue. As a result of the explosion two innocent people died while the petitioner himself received as many as 14 injuries.
3. A bare reading of section 4 of the Explosive Substances Act of 1908 shows that in order to fall within the mischief of the said section malice and intention are sine qua non. There has to be mens rea in order to attract the provision of section 4 of the Explosive Substances Act of 1908. Similarly section 5 of the Explosive Substances Act of 1908 proceeds on the premises that the offender has knowledge about the explosive substance in his. Possession. Section 13-B of the Pakistan Arms Ordinance. 1965. Prima facie, does not seem to be attracted to the peculiar facts of this particular case.
4. The petitioner himself-was a victim of the explosion and therefore, cannot be saddled with knowledge or mens rea.
5. Reasonable grounds to believe that the petitioner has been guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years do not seem to exist. However, the case against the petitioner may be a case of further enquiry within the meaning of sub-section (2) of section 497 Cr.P.C, which entitles the petitioner to the grant of bail.
6. Resultantly, the petitioner is granted bail provided he furnishes a bail bond in the sum of Rs.
50,000/- with one surety in the like amount to the satisfaction of the Assistant Commissioner/Duty Magistrate of Sahiwal.