ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Criminal Bail Application No. D-828 of 2015

______________________________________________________________________ DATE ORDER WITH SIGNATURE OF JUDGE ______________________________________________________________________

For hearing.

28.01.2016

Mr.Zulifqar Ali Sangi assisted by Mr.Khan Muhammad Sangi

advocates for the applicant.

Mr.Abdul Rehman Kolachi, learned A.P.G

a/w Inspector/Investigating Officer Ismaeel Bozdar

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Being aggrieved by the order dated 5.10.2015 passed by Judge
Anti-terrorism Court, Sukkur in Special case No.69/2015 whereby bail application filed by the present applicant namely Muhammad Hashim son of Muhammad Ramzan Jatoi, in crime No.133/2015 registered at Police Station Rohri district Sukkur under section 4/5 Explosive Act read with section 7 ATA 1997 was dismissed. The applicant has filed the instant bail application under section 497 Cr.P.C read with section 21 of Anti-terrorism Act 1997 before this Court for release of applicant on furnishing solvent surety.

Briefly facts as stated in the F.I.R are that on 31.7.2015 SIP Abdul Hakeem Langah along with his staff left police station in government vehicle under entry No.10 at about 1610 hours for patrolling purpose when the complainant party reached at Berry chowk Rohri received spy information that suspected person having beard was standing at Navi park on motorcycle and he pulled out a hand-grenade from his pocket and after checking it kept the same in side pocket and there is possibility that suspected person had intention of terrorism. On receiving such information the complainant party reached at the place of information at about 1700 hours whereas on seeing the police party the applicant tried to escape away on motorcycle but he was apprehended by the complainant party and from his personal search one hand-grenade from his side pocket and one lock-pin from his front pocket was recovered. The police party completed the formalities and the applicant has been challaned in the Court of Judge Anti-terrorism Sukkur.

Learned counsel for the applicant submits that the applicant is innocent who has been falsely implicated in the case by police, against whom the applicant had lodged direct complaint before the Special Judge Anti-corruption Sukkur whereafter the police registered another false case against the applicant under section 9 (c) CNS Act, 1997, in which he has been acquitted. Per learned counsel the provisions of anti-terrorism act are not attracted in the instant case as the applicant neither had any intention to commit act of terrorism nor the hand-grenade foisted upon the applicant has been used or it was attempted by the applicant to be used for the purpose of terrorism. Learned counsel for the applicant further submits that as per prosecution story the applicant has been arrested in day light from a place which is located near Indus river and open ground whereas no private witness has been associated either form the place of information or from the place of incident where mashirnama was prepared
in spite of the fact that there was spy information. Learned counsel further submits that even the statements of P.Ws who are police officials was recorded after 10 days from the date of arrest of the applicant whereas hand-grenade has not been sent to Chief Inspector of Explosives Karachi for his opinion in terms of rule 25.42 of Police Rule 1934. Per learned counsel even report by Bomb disposal Squad & Explosive Examiner Special Branch Sukkur does not support the version of prosecution as it contains date of inspection of the site i.e 3.8.2015 whereas there is no mention as to whether hand-grenade recovered from the present applicant on 31.7.2015 was in working condition or otherwise. Learned counsel for the applicant submits that the case against the applicant is false and frivolous whereas there are serious defects in the prosecution story and the material with the prosecution. Learned counsel for applicant further submits that applicant has no previous history and does not belong to any banned organization. He lastly submits that the lesser punishment of the offence is to be taken into consideration at bail stage, hence the matter requires further enquiry. Learned counsel relied upon Sardar Sher Muhammad and 4 others Versus The State 2007 M L D 252, Shehzore and another versus The State 2006 Y L R 3167 and Karamat Hussain Versus The State 2011 YLR 1390.

Conversely, learned A.P.G has contended that since the explosive has been recovered from the applicant which could have been used for terrorism therefore applicant may not be allowed to release on bail, however while confronted with the factual and legal position as argued by learned counsel for applicant in the instant case, as neither the recovered hand-grenade has been sent for examination in terms of rule 25.42 of Police Rule 1934, whereas there is delay in recording the statements of P.Ws who are police officials. Investigating Officer present in Court also specifically asked as to whether there is any report with regard to the nature of the recovered hand-grenade from any ballistic expert etc to which he candidly stated that there is no report obtained by the prosecution, he was also confronted as to ascertain regarding assessment of condition of hand-grenade to the fact -as to whether the same is live or defused bomb .

We have taken into consideration the respective arguments advanced by the learned Advocates for the parties and perused the record which reflect that no reasonable explanation has been offered by the Investigating Officer for non sending the hand-grenade to the ballistic expert whereas bomb disposal report furnished by the prosecution appears to be defective. The recovery of hand-grenade when there is inordinate delay in recording the statements of P.Ws who are police officials, the applicant has not previous history therefore, requires further enquiry. Accordingly applicant is granted bail in the sum of Rs. 200,000/-(Two lacs) to the satisfaction of learned trial Court.

The observations made herein above are tentative in nature and may not influence the trial Court at the time of passing Judgment, however, the applicant is directed to attend trial Court regularly in case of failure trial Court is at liberty to take action against applicant in accordance with law.

J U D G E

Irfan/PA

Twisted