1. ' The present applicant/accused along with three other co-accused, who are absconding, is facing charges under section 13-E, Arms Ordinance, 1965 before Special Court-I (Suppression of Terrorist Activities), Karachi.
2. ' The facts as narrated in the F.I.R. No,352/95 of Police Station Nazimabad, Karachi Central, dated 11- 8-1995 are that on the same day at about 11-30 a.m. The present applicant/accused namely Noor Muhammad alias Gogi who was under arrest at the relevant time with the same police station in Crime No,350/95 disclosed to the complainant that near the Government School Ishaatul Qur'an, Jamhooria Colony he along with other co-accused have hidden arms and ammunition some 15 days ago. At his potation and in the presence of two Mashirs namely Muhammad Iqbal and Muhammad Ali, two .7 mm rifles, which were in serviceable condition one .30 bore T.T. Pistol along with 19 bullets of .7 mm and 20 bullets of T.T. Pistol and 300 bullets of Kalashnikov were recovered and were taken into possession. On 24-8-1995 the prosecution filed charge-sheet before the above said trial Court showing the present applicant as accused under arrest and the remaining three persons in column No,2 as absconder.
3. ' We have heard Mr. Farooq A.K. Lodhi, Advocate for the applicant and Mr. Habib Ahmed for the State. We have also perused the police papers produced during the hearing of this bail application by the learned counsel appearing for the State. It is contended by Mr. Farooq Lodhi that the alleged recoveries were foisted upon the applicant by the police. That prior to alleged recoveries, the applicant was admittedly in police custody which makes the alleged recoveries doubtful. That the police have failed to comply with the provisions of section 103, Cr.P.C. Which entitles the applicant for grant of bail. That the so-called recoveries were made from the place which is an open place and not in exclusive possession or occupation of the applicant. Mr. Farooq Lodhi has relied upon the case of Jagdish Kumar v. The State 1992 M LD 878 and the case of Muhammad Umer and another v. The State 1995 PCr.LJ 1346. He has also referred to unreported case of Iqtidar Hussain v.
4. The State Criminal Bail Application No,1081 of 1995, Noor Muhammad alias Gogo v. The State Criminal Bail Application No,1297 of 1995 and"the case of Ejazur Rehman v. The State Criminal Petition No,140 of 1995.
5. ' Mr. Habib Ahmad, Advocate for the State has opposed grant of this bail application on the grounds that it is premature stage to consider the bail plea of accused, that there is sufficient material available with the prosecution to connect the present applicant with the alleged offence and that in the cases as alleged in the F.I.R., the .Strict compliance of section 103, Cr.P.C. Is not required. He has placed reliance on the case of Mir Muhammad v. The State 1995 SCM R 614 and on the case of Muhammad Akbar v. The State 1995 SCMR 695.
6. It is an admitted position that applicant as initially arrested in Crime No,350/95by the Nazimabad Police Station and that during his custody with the said police, he led the complainant and other police officials to the place from where, after digging ground, all the arms and ammunition, as mentioned hereinabove, were recovered. It is not the case of the prosecution that the area from where the alleged recoveries were made, in any manner belongs to the applicant. It has also not been denied by the prosecution that all the weapons recovered were not sent to the Ballistic Expert to ascertain whether they are in working condition or not.
7. ' In the case of Jagdish Kumar v. The State a Division Bench of this Court granted bail to an accused who was involved in the offence under section 7(1)(d) of Arms Ordinance, 1991 and was facing trial before the Special Court (Suppression of Terrorist Activities) at Karachi. The bail was granted to the accused in the said reported case on the ground, inter alia, that the recovery was effected from an open ground and it was held by a Division Bench of this Court that the contention of the accused that he cannot be held responsible for having exclusive custody of klashnikov and other material recovered has force. Another Division Bench of this Court in the case of Muhammad Umar and another v. The State (supra) granted bail to accused persons facing trial before the Special Court (Suppression of Terrorist Activities) at Khairpur against whom it was alleged that .7 mm rifle, klashnikov, five pistols, one dagger, two knives and about 100 bullets of Kalashnikov and pistols were recovered from the possession of the said applicant. This Court granted bail on the consideration of the fact that the applicants were in police custody in another case at the time when the alleged recoveries were effected. It was held by the said Division Bench of this Court that prima facie, the applicants were neither in possession nor in control of said watercourse and its surrounding area from where the alleged recoveries were made and, therefore, the case was not covered by the prohibitory clause of section 497, Cr.P.C. In one of the recent case Mumtaz and another v. The State 1995 PCr.LJ 297 another Division Bench of this Court to wnich.One of us was member (Mr. Wajihuddin Ahmed, J.), granted bail to the applicants and held that the principle of justice, equity and good conscience, as promulgated in the various provisos of section 497(1) and other procedural sections of the Code of Criminal Procedure are equally applicable to the grant and refusals of bail under subsection (8) of section 5-A of the Suppression of Terrorist Activities Act, 1975. The rule laid down by another Division Bench of this Court in the.Case of Yameen Kumhar v.
8. The State PLD 1990 Kar. 275 was referred and it was held that since non-compliance of the mandatory section of 103, Cr.P.C. Was committed, as such, the accused were entitled to bail.
9. ' The present accused/applicant who was arrested earlier in another case i,e, case Crime No,350/95 of Police Station Nazimabad, has been granted bail by another Division Bench of this Court in Criminal Bail Application No,1297 of 1995. The learned Division Bench of this Court followed the dictum laid down by the Honorable Supreme Court in the case of Ejazur Rehman v. The State Criminal Petition No,140 of 1995 and Criminal Appeal No,445 of 1995 where it was held by the Honorable Supreme Court as follows:-- "We have decided to refrain from dilating on the respective contentions raised by the learned counsel for the parties. The offence with which the appellant stands charged, prima facie, falls under section 13-D of the Arms Ordinance, 1965, which is punishable with imprisonment that may extend to three years or seven yeaRs, In either case, .The offence does not fall within the prohibitory clause of section 497(1), Cr.P.C. We would accordingly allow his bail and direct that he should furnish bail in the sum of Rs,50,000 with one surety to the satisfaction of the trial Court."
10. ' In the other unreported cases of lqtidar Hussain and Nisar Khan, as referred by Mr. Lodhi, this Court has granted bail to the applicants involved in the offence under section 13-D, Arms Ordinance, 1965 who were facing trial before the Court of Special Judge (Suppression of Terrorist Activities) at Karachi on the grounds, inter alia, that the pistol recovered as per did not disclose whether it was semi-automatic, automatic or a T.T.
11. ' The cases referred by the learned counsel appearing for the State arise out of criminal appeal filed by the appellants. In the case of Mir Muhammad, the Honorable Supreme Court upheld the conviction order passed by the learned Sessions Judge, Usta Muhammad and High Court of Baluchistan on the grounds that the police officials who were witnesses had no enmity with the appellants and that there was no infirmity in the statements of prosecution witnesses and that the plain reading of section 103, Cr.P.C. Shows that it is applicable in a case where the police conducts search of a house/place to recover an article to! Which search is to be made and not in the case where the thing is to be recovered in consequence of information given by or on the potation of the accused. More or less, same rule was followed by the Honorable Supreme Court in the case of Muhammad Akbar. In the case of Muhammad Akbar leave to appeal was refused on the grounds, inter alia, that there was no infirmity in the prosecution evidence and that the recovery made on the potation of the accused is relevant under Article 40 of Qanun-e-Shahadat, 1984.
12. ' On the question of interpretation and requirements of section 103, Cr.P.C., we would like to refer a recent case of the Supreme Court reported as Muhammad Azam v. The State PLD 1996 SC 67 where a Full Bench of the Honourable Supreme. Court has held that section 103, Cr.P.C. Applies with full force when search is to be made of place which is in a locality as it relates to the place and not to the person. It was further held that if place is known where search is to be made and that place is situated in a locality which is inhabitated by the people, then it is necessary to join two or more respectable persons from that locality to witness the search. The cases of Safdar Abbas and others v. The State PLD 1987 SC 467 and the case of Mirza Shah v. The State 1992 SCM R 1475 were also referred in the said reported case by the Supreme Court and it was further held that in circumstances where it is not possible to comply with the provisions of section 103, Cr.P.C., the Court will not insist on its strict compliance but will examine other evidence produced by the prosecution to prove the recovery with care and caution and that the prosecution is required to explain non- compliance of the provisions of section 103, Cr.P.C. In view of the above case-law, we are of the tentative view that in the instant case the burden is upon the prosecution to show why the provisions of section 103, Cr.P.C. Was not complied at the time of alleged recovery. However, for the time being we are inclined to resolve this doubt in favour of the accused/applicant. (See Amir v.
13. The State PLD 1972 SC 277).
14. ' No doubt, the principle laid down in the cases arising out of appeal may also be considered at the bail stage but every criminal case has its own distinguishable facts. In the instant case, the prosecution evidence is yet to be recorded and the only material placed before the Court is F.I.R., charge-sheet, recovery memo. And 161, Cr.P.C. Statements of the two MashiRs, We had already pointed out certain facts of this case which are either admitted or not denied by the prosecution.
15. We are of the considered view that at this stage the rule laid down by this Court in the case of Jagdish Kumar, Muhammad Umar and Mumtaz and another are attracted. In the case of Mir Muhammad and Muhammad Akbar there were other material before the Honorable Supreme Court besides interpretation of section 103, Cr.P.C. Which resulted in upholding of the order of conviction passed by the trial Court.
16. IAs a result of the above discussion, we accept this bail application and forthwith, if not required in any other case, upon furnishing solvent surety in the sum of Rs,1,00,000 with P.R. Bond of like amount to the satisfaction of the trial C Court.