1. ' Brief facts of the case are that on 28-2-1998 Muhammad Saleh Kario, Excise Inspector D.I.O. Camp at Moro was on duty for checking vehicles on National Highway along with his staff. At about 2-00 p.m. Near District Council Octopi Check-post, Excise personnel suspected one Truck bearing No,9824-PRO and they gave signal so that truck may stop. After getting signal truck was stopped by the driver and Excise personnel found three persons sitting in cabin along with the driver. Rear portion of the truck was occupied by some ladies and children and adult persons wherein household articles were also lying. On inquiry by Muhammad Saleh, Inspector, the person disclosed their names as Khawinda truck driver, Muhammad Ali also truck driver and Pir Bux. The persons sitting in the rear portion gave their names as Wali Muhammad, Chaste Rehman, Shafi Muhammad, Zulfikar, Dur Muhammad, Sher Muhammad, Mir Muhammad, Noor Muhammad, Ghulam Abbas, Rust am, Siyanda, Saia, Hsian, Bashir an, Mehta, Jamul and Amiran. Except Wali Muhammad and Chaste Rehman and 3 women others were minor who were seen in the rear portion.
2. ' The Excise Personnel searched the iron boxes wherefrom they secured 2 rifles of 8 mm; 5 pistols of .30 bore, 156 live bullets of .30 bore pistol, 24 live cartridges of .12 bore, 3 magazines of 8 mm rifle, 6 magazines of .30 bore pistols, one repeater No,378810 (Made in Italy), 5 belts of pistols and a knife.
3. From a small iron trunk the Excise party secured "Bhang" and Charas which were weighed. Charas became 50 grams and Bhang became 500 grams. Excise police also secured one Honda motor- cycle and a license of .12 bore gun and pistol license in the name of Pir Bux. The complainant party also secured one Bilgy (receipt), registration book, route permit from the dash board. After preparation of Mashirnama, the Excise Inspector arrested the culprits and brought the truck, the accused, women and children and lodged F.I.R. On behalf of State for offence under section 9 Control of Narcotic Substances Ordinance. The Mashirnama prepared by the Excise Inspector was sent to Police Station Moro where its contents were incorporated in 154, Cr.P.C. Book which resulted in registration of Crime No,18 of 1998 under section 13-A(2) of the said police station. The investigation was commenced by Moro Police and on its finalization, charge-sheet was filed before the Court having jurisdiction.
4. ' Bail application on behalf of above named Accused/applicants was moved before the Special Judge S.T.A. Court Naushahro Feroze which was rejected by learned trial Court vide order, dated 6th of April, 1998. Hence the present bail application.
5. ' We have heard Mr. Habibullah Shaikh learned counsel for applicants Nos.3, 4 and 5 who contended that after lodging of the F.I.R. And finalization of investigation two separate charge- sheets have been filed; one for offence under section 13-A(2), Arms Ordinance and the other for an offence under section 9 Control of Narcotic Substance Ordinance. He also contended that applicants Muhammad Ali and Khasta Rehman are drivers of the truck whereas applicant Khawinda is a cleaner of the truck; that these applicants in their capacity as drivers and cleaner were carrying the luggage under proper "Bilty" wherein hire charges were mentioned Rs,10,000 and Rs,5,000 were paid as advance and balance amount was to be paid after the delivery of the goods.
6. He also contended that the arms and ammunition were not secured from the conscious and exclusive possession of the accused/applicants. Learned counsel has referred to:--
(i) Ghulam Hussain v. State 1998 PCr.LJ 40.
(ii) Muhammad Ashraf v. State PU 1998 Cr.C.
7. 141.
8. ' Mr. Syed Nasir Ali Shah appearing for Pir Bux and Wali Muhammad contended that applicants Pir Bux and Wali Muhammad are Zamindars and even according to prosecution case police secured two weapons which are covered by valid license in the name of Pir Bux; that recovery allegedly is effected near District Council Octopi Check-post, National Highway and Excise Police has not associated any independent person to act as Mashir in the case; that the offence is not a scheduled offence; that weapons were not referred to the Ballistic Expert for his report; that Pir Bux applicant has filed direct complaint bearing No,6 of 1998 through Jailor sub-jail Naushahro Feroze on 16-3-1998.
9. ' Mr. Zawar Hussain Jafri learned A.A.-G. Contended that Excise Police while performing their normal duty, on suspicion searched the truck from which huge quantity of arms and ammunition was recovered coupled with recovery of Charas and Bhang for which separate charge-sheets have been filed before the Courts having jurisdiction; that the case is recent one and has not proceeded; that accused/applicants Pir Bux and Wail Muhammad are involved in four criminal cases for offences under sections 302, 379, 307, P.P.C. And 13(d), Arms Ordinance which show that they are criminals and are indulging in criminal activities. According to learned A.A.-G., S.H.O. Received the report of Armed Moharir, Police Lines, Nawabshah which shows that repeater (gun) bearing No,378810 was semi-automatic weapon and in working order and the rifle of 8 mm and 5 pistols of .30 bore were also semi-automatic weapons and in working order.
10. ' Learned A.A.-G. Also repelled the contention of applicants that the offence is not covered by the Schedule of the Suppression of Terrorist Activities (Special Courts) Act, 1975. According to him this point cannot properly be agitated here in the bail application but the applicants can move the Court before which the charge-sheet has been filed or they may take other remedy available under the law. He vehemently opposed the grant of bail application.
11. ' We have considered the material placed with the case. The Excise Police while performing their normal routine duty suspected the truck and searched it from where huge quantity of weapons including semi-automatic sophisticated weapons has been secured. In the instant case we feel that the provisions of section 13(c) of the Arms Ordinance will be attracted and the punishment provided for such offence is imprisonment for 7 years. This section reads as under:-- "13. Penalty for breach of sections 4, 5, 8 to 11.--- Subject to the provisions of sections 13-A and 13-B, whoever commits any of the following offences, namely:-- (a).
12. (b).
(c) transports any arms, ammunition or military stores in contravention of a regulation or prohibition issued under section 5;
(d) to (i) .................................................................................. Shall be punished with imprisonment for a term which may extend to seven years, or with fine, or with both."
13. ' We have given our anxious consideration to the contention of learned counsel that the arms and ammunition were not secured from conscious and exclusive possession of the applicants/accused. We hold the same to be bereft of any legal force. A Photostat copy of the Bilgy has been placed on the file by Mr. Habibullah Shaikh and one of the terms of this document stipulates that in case material not permitted by law is secured from the vehicle, the driver will be responsible for such an act. Obviously a huge quantity of arms and ammunition wrapped in a quilt and lying concealed in the iron box was seized from the truck and therefore, the present applicants cannot escape from the criminal liability for carrying the illicit weapons.
14. ' Now a days the whole country and specially Sindh Province is in the grip of terrorism and mass availability of unlicensed automatic, semi-automatic and sophisticated weapons has created very ugly law and order situation and people cannot be left at the mercy of terrorists and criminals.
15. ' In view of the above background we would like to discuss the case-law referred to by the learned counsel for the accused/applicants. In the case reported in 1998 PCr.LJ 40 one .30 bore pistol and two live cartridges were recovered from the accused and a learned Single Judge of Lahore High Court was pleased to allow him bail keeping in view that he was in custody for last over 5 months.
16. ' In the other case reported in PLJ 1998 Cr.C. (Lah.) 141 police secured .30 bore pistol with four live cartridges from the possession of accused Muhammad Ashraf and learned Single Judge of the Lahore High Court granted bail to the accused considering that he was in custody for over 5 months.
17. ' The facts of the above cases on the face of it are different and distinguishable from the facts of the present case. In these cases one accused with single .30 bore pistol and some live cartridges was arrested whereas in this case Excise Police secured huge quantity of sophisticated, semi- automatic arms and ammunition from the truck of which three accused are employed and accused Pir Bux and Wali Muhammad were sitting as owner of the luggage. Presumption can be drawn that the arms and ammunition were being transported in the garb of house-hold articles.
18. ' Reverting to the direct complaint filed by applicant Pir Bux, it may be observed that the same has been filed on 16-3-1998 i,e, after about 16 days of registration of crime against the accused/applicants. Certified true copy of the complaint has been filed which shows that on 4-4- 1998 learned Sessions Judge had ordered for recording of statement of the complainant under section 200, Cr.P.C. It is not known as to what is the present stage of the proceedings in the said complaint.
19. So far non-availability of the private persons to act as Mashirs is concerned, this point can better be thrashed at the time of trial of the case when the complainant and the witnesses are brought to witness-box and subjected to cross-examination. Till then no adverse inference can be drawn as to the truth of prosecution version. Moreover, the Superior Courts have held that the Police witnesses are as good witnesses as private persons and their testimony cannot be discarded on the sole ground of their being Police witnesses.
20. ' The contention of the learned counsel that the offence is not punishable with death, imprisonment for life or 10 years is also not tenable. As observed hereinabove the frequent transport and supply of the sophisticated illicit weapons has created problems for the citizens. Even otherwise, it is not right of an accused to get bail in an offence punishable with imprisonment for less than 10 years. Similar are the observations of the Honorable Supreme Court in the case of Imtiaz Ahmed and another v.
21. State PLD 1997 SC 545 wherein it has been observed that even in offences not falling within prohibitory clause of section 497, Cr.P.C. The Court may decline to grant bail to the accused if there existed recognized exceptional circumstance. The reported case fully applies to the facts of the present case.
22. ' Another aspect of the case is that applicants Pir Bux and Wali Muhammad are alleged to be involved in other cases whereas the other 3 applicants are residents of Tribal Areas of the Province of N.-W.F.P. Recently, tendency has developed that accused after getting bail in a criminal case abscond away and it becomes impossible to trace them in other Province. Thus, serious prejudice is caused to the prosecution.
23. ' Consequently, the application is devoid of merit and substance which accordingly is hereby rejected. After hearing the parties on 19-8-1998 the bail application was rejected by a short order.
24. Above are the reasons for the same.
25. ' The observations made hereinabove are tentative in nature and may not influence the trial Court in the decision of the case.
26. ' The learned trial Court is required to conclude the trial expeditiously.