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Before Ibadat Yar Khan, J
MUHAMMAD AFAQ KHAN SHAHID
and others--Applicants
versus
THE STATE--Respondent
Bail Applications Nos. 6 and 1 of 1987 in Case No. S.K5 of 1986,
decided on 2nd February, 1987.
---S. 497--Explosive Substances Act (VI of 1908), Ss. 3 & 5--Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S. 5(6)---Bail, grant of--Accused allegedly inciting people in mob for 'Ghirao, Pathrao and Thorphor' of public property--Bomb thrown by someone in crowd on Police Truck injuring four constables and damaging truck--One Patrol Pump and a Bank set on fire--Accused apprehended at spot--Principal accused, an elected M.N.A. having started movement for repatriation of Beharis from Bangladesh, on hunger strike--People gathering there turned to be unruly mob--Evidence-on-record showing use of some explosive material in mob--No specific role to any of accused for active participation, attributed--Only verbal appeals for Ghirao, Jalao, etc. attributed to accused--Possibility of any over zealous member of unruly crowd, using offensive material not completely ruled out--Ten bombs and two tin boxes, one containing Potasium and other gun powder, allegedly recovered from dicky of car belonging to principal accused after obtaining key from him--Car not remaining in physical possession of accused, for last 72 hours, being confined to Camp while on hunger strike--Expert opining that material produced in Court, could not cause explosion in present form or danger to human life or property--Provisions of S. 5(6) of Act XV, held, were not complete bar to allow bail but like S. 497(1), Cr.P.C. would empower Court to grant bail where no reasonable grounds existed to believe accused guilty of scheduled offence--"Grounds" was word of higher import and something different from suspicion--No reasonable ground existed to believe accused guilty of scheduled offence--Bail, granted in circumstances.
Khalid Saigol v. The State P L D 1962 S C 495; Nadara v. Jamait Khan and another P L D 1968 S C 310 and Abdul Malik v. The State P L D 1968 S C 349 ref.
Muhammad Ilyas Khan, S.P.P. for the State.
Iqtedar Hashmi for the Accused.
Applicants Muhammad Afaq Khan Shahid and five other co-accused have been challaned to face charges under section 3 of the Explosive Substances Act, 1908: Accused Muhammad Afaq Khan Shahid has been additionally charged under section 5 of the Explosive Substances Act, 1908 for being in possession of some explosive material which was discovered from the dicky of his car.
2. Briefly the facts may be stated that on 10-5-1986 several F.I.Rs, were lodged making allegations against the accused that at about 11-50 p.m. on 10-5-1986 they incited people for 'Ghirao, Pathrao and Thorphor' of public property. At about the same time, it is alleged, a bomb was thrown by someone in the crowd which landed on a Police Truck causing injuries to as many as four A Police Constables and also damaging the vehicle on which they were travelling. It is also alleged that at some distance from this occurrence a Petrol Pump and a Bank were set on fire by unruly mob. The accused were apprehended by complainant Rehmat Ali P.W. No. 1. They were arrested and taken to the Thana. The injured were sent to the Hospital for treatment.
3. Principal accused Muhammad Afaq Khan Shahid in this case has been elected to the National Assembly from the Constituency known as "Orangi Town" and happens to be a sitting M.N.A. for the running term of the Assembly. He seems to have started a movement for the repatriation of 'Beharis' from Bangladesh to Pakistan. To press his demand and pressurise the Government, he started a 'Hunger strike' 6 in the Liaquatabad area, Karachi and pitched a camp where he started the hunger strike on 8-5-1986. Several persons joined him. It appears that the hunger strike attracted public attention and members of the public started gathering around the Camp and by night on 10-5-1986 a sizeable crowd gathered in the area and as the story goes, it became unruly and out of control.
4. Learned counsel for the accused Muhammad Afaq Khan Shahid, has tried to impress that Muhammad Afaq Khan Shahid, who represents a section of the people as their representative merely wanted to demonstrate the feelings of his electorate. His hunger strike and camping in a politically important area was a universally recognised mode of protest in order to highlight the demands and grievances of his electorate and press the Government to accept the demands. While the learned counsel for the prosecution has made reference to previous conviction of this accused by the Martial Law Courts and his involvement in public agitation causing situation of law and order and embarrassment to the law enforcing agencies of the Government.
5. I am not concerned here with the political sagacity of the leaders of the movement or the motives which brought them to the scene of this episode. I am only concerned with the role attributed by the prosecution to principal accused and the co-accused within the framework of the sections under which they have been charged. It would be profitable to quote the two sections under which the accused are facing trial. Section 3 of the Explosive Substances Act, 1908 Act No. VI of 1908 runs as under:-----
"3. Punishment for explosion likely to endanger life or property---- Any person who unlawfully and maliciously causes by any explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property shall, whether any injury to person or property has been actually caused or not, be punished with death or imprisonment for life."
6. The evidence so far recorded goes to show that some material may be bomb or may be other material, was used on that night which caused injuries to the four Policemen namely, Ashraf Awan P.W. No.6, C Israr Khan P.W. No. 7, Akhtar Ali P.W. No. 10 and Ghulam Abbas P.W. No. 11 and quite a few others who have not yet been examined.
7. The learned defence counsel appearing for the accused has, however, hotly contested the prosecution story on this point of the case and according to him no explosive material was used on that night. Learned counsel argued that had there been any explosive material, the prosecution would have shown the sharpnel and shreds of the so-called bombs which were used on that night, which admittedly have neither been gathered nor mentioned in the articles recovered from the scene of occurrence. Nor indeed any mention to this effect has been made in the Mashirnama.
8. The Medical Officer Dr. Jalil Qadir P.W.No.( ) of Abbasi Shaheed Hospital, Karachi, who had examined the injured, has stated that he had examined about nine persons, who had suffered injuries on that night and according to this Doctor these injuries could be caused by "explosive substance as alleged." He was cross-examined and a question was put to him whether these injuries could be caused by blunt object or fall of the injured on the ground and his reply was "Yes. It could be".
9. The learned counsel for the defence has vehemently argued that as no ingredients of the exploded bomb have been exhibited in the case, and indeed the vehicle on which the bomb is alleged to have landed, has not been inspected, the injuries could be caused by brick bats or some other non-explosive material. The learned counsel seeks support from the statement of this witness that the injuries suffered by the injured persons could be caused by some blunt object and not necessarily by any bomb or any explosive material.
10. This is a matter of argument and for the purpose of the disposal of the bail application I would not go deeper into the allegations and counter allegations. Suffice it to say that the suggestion of the defence or by brushed aside as totally impossible and improbable.
11. The other point for consideration is whether the accused now applying for bail, have played any direct role in this activity of throwing the so-called bomb or causing injuries to the victims on that night So far nine witnesses have been examined. The leading witness on this point is P. W. No. l Rehmat Ali. The other four witnesses Israr, Muhammad Ashraf Awan, Akhtar Ali and Ghulam Abbas were also in that truck and they have also narrated the story of the use of explosive material on that occasion. If their evidence is carefully read, none of them has attributed any specific role to any one of these five accused for active participation, except verbal appeals for "Ghirao, Jalao etc." Moreover, it cannot be completely overlooked that a person, who was on hunger strike for 72 hours could participate in throwing the bombs and could have possessed such strength as to successfully throw explosive material on his target. Again I may say that this is not the time to examine the degree of culpability of this accused as it should be left to be determined after the entire evidence or some further evidence comes on record. It is admitted position in the case that a large crowd consisting of 500 to 1000 people had gathered there and in the absence of any specific allegation against these accused by the witnesses so far examined, the possibility of any reckless or over zealous member of this unruly crowd using the offensive material cannot be completely over ruled. For the present this would be enough to say that so far as implicity of these accused in the crime under section 3 of the Act is concerned, the weight of evidence is not against any of the accused.
12. Accused Muhammad Afaq Khan Shahid has further been implicated and charged for an offence under section 5 of the Explosive Substances Act. This section is as follows:-----
"5. Punishment for making or possessing explosives under suspicious circumstances:
Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be punishable with imprisonment for a term which may extend to fourteen years."
13. It is alleged that accused Muhammad Afaq Khan Shahid's car, was parked in the vicinity of the Camp in which the accused were on hunger strike. P.W. Rehmat Ali has stated that few minutes before the arrest of the accused, he asked for the key of the car from Muhammad Afaq Khan Shahid. After obtaining the key he proceeded to search the E car. According to him, when he opened the dicky of the. car, he discovered "a brief-case of black colour, a cloth-bag were found. The cloth-bag contained 10 bombs and two tin boxes of tabacco. One of the tins contained Potassium and one of the tins contained gun-powder." He has identified these articles in Court. According to him the search of the car was made in presence of witnesses Muhammad Irfan, Muhammad Bashir and Muhammad All.
14. The learned defence counsel in his arguments has vehemently denied the recovery of these articles from the car of accused Muhammad Afaq Khan Shahid. His contention is that at the relevant time when the accused was fasting for 72 hours in the Camp, he was neither in physical possession nor control of the car. The counsel proceeded to argue that in view of the fact that brick batting was going on a large scale and people were becoming unruly any prudent man would not park a car at such a place as to make it an easy target for the falling stones. That neither the accused himself nor any one concerned with him was invited to witness the so-called search. The learned counsel alleged that the recovery not being in compliance with the relevant provisions of law, cannot be relied upon. According to him, the material alleged to have been found from the dicky of the car was planted by the prosecution in the car to implicate the accused.
15. In addition to this it should not be overlooked that during the 72 hours that its owner remained confined to the Camp where he was fasting, the car must have ferried from place to place with the driver F or any friend or relative on the driving wheel. Obviously the car did not remain in physical possession or control of the accused for these 72 hours at least.
16. In the circumstances it becomes highly debatable whether the discovery was made from the car or the material was surreptitiously planted in the car to implicate the accused or it was introduced by someone who may have remained in control of the car during the 72 hours preceding the search and alleged recovery of the incriminating material.
17. These considerations apart the material which has been discovered and produced in Court, has been described by the Explosive Expert P.W. Pir Muhammad in the following terms:--
"Fire crackers 12 in number of size 61 x 3/4 diameter. In addition to the 12 crackers I received other material which were some chemical and also some gun powder. The material included pieces of blades and small nails weighing about one kilogram. Empty tins of Raja Jan Tobacco about 10 numbers were also sent to me with this material. Two large size containers of Raja Jani Tobacco were also sent to me. These chemicals are used for preparing gun powders. When I examined the crackers, I found that they were filled with gun powder of brown colour. If such crackers are ignited, they would cause great noise and would also cause injuries."
Certain questions were put to him in his cross-examination and it would be relevant to quote this part of the statement of the witness to show whether the recovery of this material could give rise to a presumption that it could be unlawfully and maliciously used for causing "an explosion of a nature likely to endanger life or to cause a serious injury to property" within the meaning of section 3 of the Explosive Substances Act (VI of 1908).
18. In my humble opinion the definition of "explosive substance" as given in section 2 of the Act is to be carefully interpreted. If a literal meaning is assigned to this expression, then even ordinary sulphur, acids, nails and tin pieces which are in common daily household use, would also become an offensive object. The crackers and fireworks filled with live gun powder freely used during marriage ceremonies, and Shab-e-Barat, being explosive substances, would become actionable and provide a basis for prosecution of their users or possessors. But it is not so.
19. In my opinion there has to be a nexus between the explosive) object and its use visualised in section 3 of the Act. The explosive substance mentioned in section 5 of the Act should be such as to qualify for a use described in section 3 of the Act. Looked in this context the following opinion of the Expert becomes very relevant:--
"It is correct that the crackers produced in Court today which, I have examined are ordinarily called Patakhas and they are normally used as crackers during the Shab-e-Barat G and on occasions of marriage ceremonies. It is correct to say that all the material which has been produced in Court today, cannot be used for causing any explosion as it is in the present form. In the present condition this cannot cause any explosion and cannot cause any danger to human life or property."
20. There is much weight in the arguments of the learned counsel that recovery of this material which may have been found from the Car of accused Muhammad Afaq Khan Shahid can at most amount to a technical offence for which penalty of death or transportation for life cannot be visulised by any means.
21. The two learned counsels have cited some case law with which I will deal now. The first case cited at the Bar is Khalid Saigol v. The State P L D 1962 S C 495. The accused were charged under section 302, P.P.C. etc. Hamoodur Rahman, J. sitting with Cornelius, C.J. and Kaikaus, J. made the following observations:-
"It will be observed that even under section 497 (1) in the case of an offence punishable with death or transportation for life the mere heinousness of the offence is not by itself a circumstance sufficient to take away the discretion of a Court to grant bail but in addition thereto there must also exist reasonable grounds for believing that the person seeking bail has been guilty of such an offence."
In the next para. it was further observed:--
"Subsection (2) of the said section, on the other hand, comes into application where the investigation, inquiry or trial has already commenced and in the course thereof the accused has come to be in a position to satisfy the Court that there are << reasonable grounds for believing that he has committed the offence alleged and if he so succeeds in satisfying the Court, then the Court has thereafter no discretion left, for, it is enjoined thereunder that the Court shall enlarge him on bail even if it is of the view that there still are sufficient grounds for further inquiry into his guilt."
22. In another case Nadara v. Jamait Khan and another reported in P L D 1968 S C 310, Yaqub Ali, J. made the following observations:-----
"It would be incorrect to say that a person who is accused of an offence punishable with death or transportation for life cannot be admitted to bail except on ground of age, sex or infirmity, as section 497, Cr. P. C. , envisages that bail shall be refused if there appears reasonable ground for believing that the person accused has been guilty of an offence punishable with death or transportation for life. It follows that if the Sessions Judge or the High Court form an opinion that such reasonable grounds do not appear the prayer for bail may be, allowed. The determination whether bail will be allowed to a person accused of an offence punishable with death or transportation for life will thus depend on the facts of each case."
Again in the following para his lordship observed:
"After the material witnesses in the case have been examined, the Sessions Judge or the High Court if satisfied that reasonable grounds do not appear for believing that the accused has been guilty of an offence punishable with death or transportation for life may grant bail to him. But as all Sessions cases are heard from day to day and judgment is pronounced either at the close of the hearing or soon thereafter, an occasion for granting bail to an accused person during the trial will not arise frequently.
23. Another case cited at the Bar was Abdul Malik v. The State PLD 1968 S C 349. In this case a learned Judge of the High Court had refused to grant bail to an accused on the assumption that his discretion to grant bail was curtailed by the dictum laid down in certain cases decided by the Supreme Court. Dispelling this impression Sajjad Ahmed, J. made the following very useful and constructive observations:-
"We do not wish to burden the learned Single Judge with the intention of holding that although the case fell under section 497(2), Cr.P.C. to merit bail, yet the learned Single Judge found himself precluded to grant bail in view of the dictum of the Supreme Court in the cases cited by him in the order. It must be made clear with all deference to the learned Single Judge that no dictum or judgment of the Supreme Court has created any such hurdle in the matter of bail, as has been conceived by him in his order. It seems that the plethora of decisions on the subject, each proceeding on its own particular facts and circumstances different from the other has produced a confusion of thought but there is no doubt whatever about the basic essentials governing this matter.
The first is that bail should never be withheld as a punishment. In cases of non-bailable offences coming before the Court, grant of bail is a relief resting primarily in the discretion of the Courts to be exercised with due care and caution as a fundamental incident of exercise of judicial power, taking into account the facts and circumstances of each case. Orders on bail application should not be considered as routine orders. Involving as they do the liberties of the citizens, they must be carefully balanced and weighed in the scales of justice and the requirement of the relevant law, as contained in section 496-498 of the Cr. P. C. There is, however, a further limitation on the Court's discretion in regard to cases of offences which are punishable with death or transportation for life, which is that the accused shall not be released on bail in such cases if there are reasonable grounds for believing that he has committed such an offence. 'Reasonable grounds' is an expression which connotes that the grounds be such as would appear to a reasonable man for connecting the accused with the crime with which he is charged, 'grounds' being a word of higher import than 'suspicion'. However, strong a suspicion may be it would not take the place of reasonable grounds. Grounds will) have to be tested by reason for their acceptance or rejection. The reasonableness of the grounds has to be shown by the prosecution by displaying its cards to the Court, as it may possess or is expecting to possess as demonstrating evidence available in the case both direct and circumstantial. If such grounds exist tending to connect the accused with the crime bail should be refused, without the need to go into a deeper appreciation of the merits of those grounds and the evidence on which they are rested, which functions are to be assumed at the trial stage. However, if it is found that the charge is groundless, i.e., to say unsupported by any evidence or instead of the grounds being reasonable, their absurdity stands exposed on a plain view, or the charge on its face value is reduced to a minor one which is not punishable with death or transportation for life, as for example where it is a case of accidental and unintended death caused by simple hurt, the limitation on the Court's discretion is removed which must then be freely exercised in favour of the grant of bail. Similarly where reasonable grounds are not disclosed but grounds do exist for a further investigation and inquiry into the guilt of an accused person, the case will fall under section 497(2) of the Cr.P.C., in which case again bail should not be withheld."
24. It is not necessary to burden this order with further decisions cited at the Bar. But in all fairness to the learned Special Public Prosecutor, it must be mentioned that he tried to distinguish these cases with the case on hand. Learned counsel argued that these judgments were base on the power of granting bails under Chapter XXXIX, Cr.P.C.
25. According to the learned counsel, section 497, Cr.P.C. under which the decisions cited above were rendered is not available to this Court because Suppression of Terrorist Activities (Special Courts) Act, 1975 (Act XV of 1975) is a comprehensive piece of legislation enacted to regulate the powers of and proceedings before this Tribunal. It was pointed out that not only the procedure for trial of "Scheduled Offences" is provided the power to grant bail to accused brought for trial before this Tribunal is also provided. As such powers available to this Tribunal for granting bail are very much limited and qualified. For instance bail could be granted in non-bailable offences to an accused "person under the age of sixteen years, or any woman or any sick or infirm person". This was not so if the accused is facing trial before this Tribunal for any Scheduled Offence. Attention was drawn to section 5 subsection (6) of the AIL' which runs as under:-
"5. Procedure of Special Court:-
(1) .........................
(2) ..
(3) ..
(4) .
(5) ..
(6) An accused person shall not be released on bail by Special Court, or by any other Court, if there appears reasonable grounds for believing that he has been guilty of a scheduled offence; nor shall an accused person be so released unless the prosecution has been given notice to show cause why he should not be so released."
26. This subsection surely is not appended with any thing like the proviso to section 497, Cr.P.C. I would, therefore, not consider the ground of illness pressed during the arguments by the learned counsel for Muhammad Afaq Khan Shahid, who was taken to the Civil Hospital/ Services Hospital for some Cardiac problem and remained an indoor patient for about a month. My approach should remain confined to the consideration of grounds mentioned in subsection (6) of section 5 of the Act. I have carefully compared the body of this subsection with section 497, Cr.P.C. and it is significant to note that in both of them the restrictive rider for granting bail is couched in the same language.
27. Subsection (6) of section 5 of the Act V is not a complete barl but like section 497 (1), Cr.P.C. allows the Court to grant bail if the Court is of the opinion that there are no reasonable grounds for believing that the accused has been guilty of a Scheduled offence.
28. I would respectfully follow the dictum laid down by the Supreme Court in the case of Ch. Abdul Malik v. The State P L D 1968 SC 349 and say that grounds are something different from suspicion. In the present case on the state of facts narrated by the witnesses so far and I repeat the words so far, and particularly in view of the statement' of the Explosive Expert Peer Muhammad it does not appear to me that reasonable grounds do exist to believe that accused Muhammad Afaq Khan Shahid has been guilty of a Schedule offence.
For the reasons stated above accused Muhammad Afaq Khan Shahid is granted bail under section 5 subsection (6) of the Suppression of Terrorist Activities (Special Courts) Act, 1975. He should be released on bail on furnishing surety in the sum of Rs.25,000 and P.R. Bond in like amount to the satisfaction of the Registrar of this Court, if he is not wanted in any other offence.
For the reasons stated above. Co-accused Syed Shahid Muhajir son of Syed Sultan Masood, Wali Muhammad son of Ghafoor Khan, Aftab Ahmed Malik son of Late Maqbool Ahmed Malik and Moeed Ahmed son of Abdul Aziz should also be released on bail on furnishing sureties in the sum of Rs.15,000 and P.R. Bond in the like amount each to the satisfaction of the Registrar of this Court, if not wanted in some other offence.
Before parting with the case, I must record the appreciation of the learned Special Public Prosecutor Mr. Muhammad Ilyas Khan, who has given proper assistance in the case on the legal and technical aspects of the case.
S.A./M-37/K Bail granted
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