Imran Khan vs State

2013 Y L R 2646

[Peshawar]

Before Lal Jan Khattak, J

IKRAM KHAN---Petitioner

Versus

The STATE---Respondent

Bail Petition No.221 of 2013, decided on 26th August, 2013.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Pakistan Arms Ordinance (XX of 1965), S.13---Explosive Substances Act (VI of 1908), S.5---Anti-Terrorism Act (XXVII of 1997), S.7---Possessing unlicensed arms, making or possessing explosives, act of terrorism---Bail, grant of---Further inquiry---Offence under S.13 of Pakistan Arms Ordinance, 1965 was bailable according to Schedule II of Cr.P.C. under the heading "offences against other laws"---Recovered items fell under Pakistan Arms Ordinance, 1965 and there was nothing to attract application of S.5 of the Explosive Substances Act, 1908-- -Alleged recovery had been effected from a residential room of the raided house; and it was yet to be established by the prosecution that accused was in exclusive possession of the raided house, as well as of the residential room---To know and assert that it was only the accused, and nobody else who owned and possessed said house and the residential room, required further enquiry, which fact would entitle accused for his release on bail---No report of Ballistic Expert was available on the file which could show that recovered arms and ammunitions were in working condition---Accused having made out a case for the purpose of bail, accused was admitted to bail, in circumstances.

2013 SCMR 834 rel.

Sh. Inamullah for Petitioner.

Sanaullah Khan Shamim, A.A.-G. for the State.

Date of hearing: 26th August, 2013.

JUDGMENT

LAL JAN KHATTAK J.---Petitioner Ikram Khan has applied this court for his release on bail in case registered against him under section 13 of the West Pakistan Arms Ordinance 1965, section 5 of the Explosive Substances Act, 1908 and section 7 of the Anti-Terrorism Act, 1997 at Police Station Kulachi of District D.I.Khan vide F.I.R. No. 221 dated 31-7-2013.

2.Short facts of the case are that during a search operation in the area S.H.O. Asghar Ali Shah of Police Station Kulachi raided a house in village Rori and recovered from a residential room of the house a Rocket Launcher with four shells, two Mark four rifles, one rifle of .303 bore and one .12 bore shotgun double barrel. The petitioner was found present in the room and so was arrested as accused for possessing the aforesaid arms and ammunition without any licence under the law.

3.Learned counsel for the petitioner in support of the bail plea contended that case of the prosecution against the petitioner is fabricated and concocted one as there is no independent eye witness to the alleged recovery. The learned counsel further submitted that the alleged recovery has not been effected from the personal possession of the petitioner but from a room and so the case requires further probe regarding his involvement in the commission of the offence with which he is charged.

4.The learned Additional Advocate General has opposed the bail petition.

5.I have heard learned counsel for the petitioner and the learned A.A.-G. for the State and also perused the record of the case.

6.Legal position in the instant case is that the recovered arms and ammunitions are covered under section 13 of the West Pakistan Arms Ordinance, 1965 which is bailable as according to Schedule-II of Cr.P.C. under the heading "Offences Against Other Laws" offences carrying punishment of more than three years but not exceeding seven years are not bailable with the exception of offences under section 13 of the Arms Ordinance, 1965, which have been expressly declared to be bailable. Reliance is placed on 2013 SCMR 834.

7.Though in the F.I.R. the local police has added section 5 of the Explosive Substances Act, 1908 but the recovered items fall under the West Pakistan Arms Ordinance, 1965 and there is nothing for the application of section 5 of the Explosive Substances Act, 1908 at least for the moment as well as from the tentative assessment of the available record.

8.Another aspect of the case is that the alleged recovery has been effected from a residential room of the raided house, and it will yet to be established by the prosecution that the petitioner was in exclusive possession of the raided house as well as of the residential room. To know and assert that it was only the petitioner and nobody else who owned and possessed the said house and the residential room requires further enquiry which fact entitles the petitioner for his release on bail.

9.Perusal of the case record further revealed that there is no report of the Ballistic Expert on the file which could show that the recovered arms and ammunitions are in working condition.

10.For the above discussion and reasons, this court is of the considered view that the petitioner/accused has made out a case for the purpose of bail. Therefore, on acceptance of this application, the petitioner is admitted bail subject to his furnishing bail bond of Rs.2,00,000 with two sureties of the like amount to the satisfaction of Illaqa/Judicial Magistrate who shall see that the sureties are local, reliable and men of means.

HBT/521/P Bail granted.