' RAJA ABDUL AZIZ BHATTI, J.--- This judgment will dispose of Writ Petition No,1413 of 1994 and Criminal Miscellaneous No,799/B of 1994 filed by the petitioner Sheikh Rashid Ahmad.
2. The brief facts of the case are that allegedly on 20th September, 1994, at 9-30 p.m. a klashnikov alongwith 10 live cartridges was recovered by the police of Police Station Waris Khan from Lal Haveli, a very well-known place located in Rawalpindi City, possession whereof admittedly is of the petitioner. This recovery was effected on spy information whereupon a raiding party was set up which included Syed Arif Hussain Bokhari, M.I.C., Rawalpindi, Ch. Mujahid Hussain Inspector/S.H.O., Police Station Pir Wadahi, Sabir Mir, Inspector/S.H.O. Police Station City, Ch. Iftikhar Ahmad, Inspector/S.H.O. Police Station Gunj Mandi, Rawalpindi, Muhammad Khan S.I., Manzoor Hussain S.I., Abbas Khan S.I. And some other police employees. The raiding party under the supervision of the learned Magistrate reached Lal Haveli at 9-30 p.m. Search was carried out in accordance with law.
A klashnikov duly loaded bearing No,97175 having ten bullets lying underneath the Sofa Set, placed in a bigger hall of the Haveli, was recovered. In the presence of the Magistrate, the weapon was taken into possession and necessary recovery memo. Was also prepared therefor. The weapon was found unlicensed. Thus, a case under section 13/20/65, Arms Ordinance was registered Nide F.I.R. No,469, dated 9-10-1994 in Police Station Waris Khan, Rawalpindi on the report lodged by Yusuf Ali Shahid, Inspector/S.H.O., Police Station Waris Khan, Rawalpindi City. The recovery was witnessed, as per contents of the F.I.R., not only by the Magistrate but also by other police officials including the Investigating Officer. Admittedly, Sh. Rashid Ahmad was not present at the time of recovery as he was already under custody/arrest and was confined in the jail.
3. The petitioner filed bail application before the learned Special Judge (Punjab) Special Court, Rawalpindi Division, Rawalpindi, but the same was dismissed vide order dated 14-11-1994. Learned Special Judge rejected the bail application mainly on the ground that illicit arm (klashnikov) had been recovered from a place, the possession whereof is of the petitioner and the recovery had been effected under the supervision and in the presence of the Magistrate. His statement has been recorded in this regard. Besides this, learned Special Judge stated that according to section 5-A subsection (8) of Anti-Terrorist Court Act, 1975, an accused shall not be released on bail if there appear reasonable grounds for believing that he is guilty of scheduled offence. In his view, there is sufficient evidence with regard to the recovery of illicit klashnikov from the place admittedly possessed by the petitioner. Hence, for the purposes of bail there are quite reasonable grounds for believing that he has committed the offence. Thus, the bail was refused to the petitioner.
4. Learned counsel for the petitioner seeks bail on the grounds that Lal Haveli does not belong to the petitioner and normally he does not reside therein. However, he admits that the petitioner is in possession of it as he often meets the public-at-large in this Haveli. According to him, the alleged recovery has been effected without complying the provisions of section 103, Cr.P.C., as nobody was associated from the locality in the recovery proceedings. He maintains that the recovery has not been effected at the instance of the petitioner, hence, it is inadmissible. He argues that unless the recovery is effected at the instance of the accused, no offence under section 13/20/65 of the Arms Ordinance is made out against any one. He vehemently states that the alleged recovery has been effected during the absence of the petitioner when he was already under arrest/detention in jail.
Thus, it cannot be called that it was a conscious possession of the petitioner. He has also drawn the attention of this Court to the contents of F.I.R. No,449 which had been registered at Police Station Waris Khan on the report of Yusuf Ali Shahid, Inspector/S.H.O. Of the police on 20-9-1994 under section 324/353/186/ 188/148/149/109, P.P.C. Read with section 16 of M.P.O. From the contents, he attempted to propound the proposition that it did not find mention in this F.I.R. That Sh. Rashid Ahmad was armed with any klashnikov and even firing had not been attributed to him. Thus, the spy information that klashnikov was lying under the Sofa set and it was the same weapon with which Sh. Rashid Ahmad had fired was false and incorrect. Lastly he argued that the very registration of the case is mala fide and with a view to harass the petitioner and to restrain him from criticising the Government working in the language of his own style which he normally happens to use.
5. Learned counsel for the petitioner on the aforesaid grounds attacked the registration of case and prayed for its quashment. He states that it is a case of no evidence merely for the reason that the recovery of illicit arm in the absence of the petitioner/accused is not admissible in evidence and no conviction can be sustained thereon. He laid much stress on the fact that the alleged recovery was not effected at the instance of the accused/petitioner and there could be no other method of recovery whereby the accused/petitioner could be connected with the commission of crime. In his view, violation of section 103, Cr.P.C. For not associating any person from the locality in the recovery proceedings goes to the root of the prosecution case. Adding to these reasons, he submits that very registration of the case is mala fide because the present Government is opposed to the petitioner, who is a well-known Member, National Assembly, from Rawalpindi City. Summing up the arguments, he is of the view that any criminal case which is of no evidence and the registration whereof is found to be mala fide, is to be quashed at the earliest possible stage so that the petitioner/accused is saved from harassment. He, therefore, prays that this case be also quashed.
' Learned counsel relied upon the following judgments in support of his contentions for quashment of the case:--
(a) Mirza Naseem Baig v. Muhammad Iqbal and another 1981 SCMR 15,
(b) Muhabat and 3 others v. The State 1972 PCr.LJ 416,
(c) Qazi Pervaiz Iqbal v. State PLD 1976 Kar. 583,
(d) The State v. Ahmad Ali and others PLD 1967 Kar. 612 and
(e) Naseer Ahmad alias Naseera v. The State 1991 PCr.LJ 2157.
6. On the other hand, learned Assistant Advocate-General assisted by Sh. Zamir Hussain, Advocate, contends that it is a case of overwhelming evidence. The recovery has been effected under the supervision and control of the judicial officer i,e, Syed Arif Hussain Bokhari, M.I.C., Rawalpindi, in addition to many other senior police officials. The weapon has been taken into possession which is available as case property.
7. We have heard the learned counsel for the parties.
' There is no force in the argument that the provisions of section 103, Cr.P.C. Have been violated mainly for the reason that the recovery had been effected in the presence of an independent judicial officer i,e, M.I.C. Non-association of any body from the public is not a damaging factor for the prosecution to the extent of disbelieving it altogether.
' It is a misconception on the part of the learned counsel for the petitioner that since the recovery has not been effected at the instance of the petitioner, hence it can neither be read against him nor the petitioner can be held responsible for that. There can be different modes of recovery, one may at the instance of the accused but that is not only one permissible in the eyes of law. For instance, recovery can be effected from a place which is occupied by the accused but when on spying information it is raided, the accused may have already made his escape leaving illicit case property/arms etc. There. If such illicit arms etc. Are taken into possession, it will be lawful and admissible in evidence against the accused, even if the recovery was effected in his absence.
8. In Mirza Naseem Baig v. Muhammad Iqbal and another 1981 SCMR 15, certain principles have been given on which complaint can be quashed. This case has no application. The prosecution has collected prima facie evidence to connect the accused/petitioner with the alleged crime.
' In the case reported as Muhabat and 3 others v. The State 1972 PCr.LJ 416, two blood-stained hatchets were recovered from the houses of the accused/appellant Jalal and Jumo, on search, by the Investigation Officer in their absence. It was argued that the evidence of such recoveries would not be admissible because this evidence would not be covered either by section 8 or section 27 of the Evidence Act. This judgment deals with the trial of the case and finding was given by the Honourable Judge after recording complete prosecution evidence, hence it is not applicable. Here in the present case, the prosecution alleges that the petitioner is in possession of the house and he had conscious possession of the illicit arm.
' The case reported as Qazi Pervaiz Iqbal v. The State PLD 1976 Kar. 583, this judgment has been given after the trial of the case and there was appeal against the conviction, hence not applicable.
' In the judgment reported as State v. Ahmad Ali and others PLD 1967 Kar. 612, this judgment deals with the acquittal of the accused, after recording complete evidence of the prosecution, hence not applicable in the present case.
' In Naseer Ahmad alias Naseera v. The State 1991 PCr.LJ 2157, the ground raised was that when the accused was not present at the time of the recovery of mauzer from the room in hostel and the possible of putting same in his room by rival students group could not be excluded. The recovery of Mauzer was not made at the instance of the accused. Exclusive possession having not been established, the accused was given the benefit of doubt. This judgment is not applicable for number of reasons, namely, it deals with the acquittal of the accused after completion of trial; that there was some material on the record to show that there was some possibility of putting illicit weapon in the room of the accused/appellant by the rival group but in the present case, the trial is yet to be started. Opportunity is yet to be availed of by either side to lead evidence in this regard.
Hence, it is premature, at this stage, to say that there was some possibility that the weapon was lying under Sofa Set at the instance of some body else. Besides this, the prosecution story is that the weapon belongs to the accused/petitioner and it has been found in a place exclusively possessed by him.
9. Regarding the judgments cited by the learned counsel for the petitioner, it can be said that most of the judgments deal with cases in which full-fleged trial was held or at least number of prosecution witnesses were examined and then finding was given to the effect narrated in the said judgments. We are of the view that the cases cited by the learned counsel for the petitioner have no bearing on the petition for quashment of the case in hand.
10. The important factor in this case is that copies of the statements recorded under section 161, Cr.P.C. Have already been given to the accused/petitioner and the case is fixed for framing of charge and proceeding with trial on 2-1-1995. It is surely a case which may not consume much time for either side for its conclusion. Quashing proceedings, at this stage, and granting bail to the accused/petitioner, in these peculiar circumstances, will not be in the interest of justice. It was so held by the Honourable Supreme Court of Pakistan in PLD 1989 SC 585 which has complete application in the case in hand.
11. So far as the mala fides are concerned, for and against arguments can be advanced because the petitioner is a Member National Assembly taking part in political activities. Admittedly, Lal Haveli is a place which has its peculiar publicity attributing Sheikh Rashid Ahmad for his political activities therein. Thus, if a place is in possession of the petitioner wherefrom illicit weapon was recovered, the legal presumption would be against him unless it is proved otherwise which occasion shall arise during the trial of the case which is to start from 2-1-1995. In addition to this, the alleged factum of mala fide can only be proved or disproved during trial by appreciation of evidence and not otherwise. There can be possibility of the fact that being a Member, National Assembly, he has concocted the story with a view to save his skin. The case, as it may be, the mala fide cannot properly and judiciously be assessed, at this stage, when the evidence is yet to be recorded.
12. So far, the judicial principles enunciated by the Superior Courts of Pakistan, criminal proceedings can be quashed mainly on the following grounds:-
(a) When the case is of no evidence;
(b) When registration of the case is mala fide;
(c) When the case is of civil nature 'but process of criminal proceedings is adopted with a view to harass the accused; and
(d) In some cases on the ground of unexceptional delay in the disposal of the case.
(e) When there is serious jurisdictional defect.
' In this case as far as the, mala fide is concerned, it will be suffice to say that the petitioner is yet to prove the allegations of mala fide in the registration of the case. Simple oral submissions/arguments on his behalf by the learned counsel are not sufficient. It is not the job of this Court to be investigator in the affairs.
' Believing that it is a case of no evidence, at this stage, will hamper the administration of judicial process. On the fact of it, there are number of statements supporting the recovery, especially the statement of judicial officer i,e, Magistrate 1st Class, which has strong bearing. It may or may not be accepted but the stage is yet to arrive during trial. The weapon of offence is available with the prosecution bearing its number. The alleged violation of section 103, Cr.P.C. Is not of vital importance. The prosecution version cannot be disbelieved in toto on this ground alone. Thus, it cannot be said at this stage that it is a case of no evidence. In fact there is prima facie case against the accused/petitioner.
' Admittedly, the case has been fixed for trial on 2-1-1995. The intervening period is hardly of a few days. At this juncture, it will be improper to quash the proceedings on the grounds taken by the petitioner.
13. So far as the bail matter is concerned, the contention of the learned counsel for the State has much force especially on two counts; firstly section 5-A, subsection (8) of the Anti-Terrorist Court Act, 1975, provides that if there are reasonable grounds to believe that the accused has committed the scheduled offence then the Court would be hesitant to grant bail. Here, in this case prima facie, there is sufficient evidence to believe the existence of reasonable grounds. Secondly, the case has already been fixed for evidence, as noted above. Besides number of other judgments, PLD 1989 SC 585 fully covers such a case. Granting bail at this stage when trial is going to be started, the Honourable Supreme Court desired to refrain from cancelling the bail, if already granted, or granting bail in case the accused is under arrest. Keeping in view this authority and the reasons stated above, we dismiss the writ petition. Criminal Miscellaneous Application No,799/B of 1994 is also dismissed.
' No order as to costs.
' These are the detailed reasons in support of our short order, dated 29-12-1994.