HAROON BADSHAH vs STATE and another
This petition for post-arrest bail was filed before the Peshawar High Court by an accused-petitioner charged under Sections 302, 324, 148, and 149 of the Pakistan Penal Code 1860, following the dismissal of his prior bail applications by the lower courts. The prosecution case alleged that the petitioner, along with six co-accused armed with Kalashnikovs, opened fire in broad daylight, resulting in the deaths of two individuals. The petitioner argued that he was not assigned a specific role in the firing, no empties were recovered from his specific location on the site plan, and he was a government servant with a plea of alibi. The High Court rejected these arguments, noting that the petitioner was directly named in a promptly lodged FIR, thirty-six empties were recovered, and the medical evidence supported the prosecution's account of multiple gunshot wounds. Furthermore, the court observed that the petitioner's plea of alibi was inconsistent and lacked specificity. Consequently, finding a strong prima facie case falling within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898, the court dismissed the bail petition.
- Can a plea of alibi be considered at the bail stage if the accused failed to raise it before the Magistrate and provided inconsistent details in subsequent applications?
- Whether the absence of a specific role attributed to an accused in a case of joint firing precludes the rejection of post-arrest bail under Section 497 of the Code of Criminal Procedure 1898?
- Does a strong prima facie connection to a double murder in a promptly lodged FIR bar the grant of bail under the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
- Section 164, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
Having been charged in a case registered vide FIR No, 35 dated 1.10.2004 u/S. 302/324/.148/149 PPC at P.S. Shah Salim Karak, the accused-petitioner applied for ad-interim pre-arrest bail in the Court of learned Sessions Judge Karak, which was dismissed vide order dated 13.1.2005. thereafter he moved the Court of learned Judicial Magistrate for his released on bail but his application was rejected vide order dated 25.2.2005. He then moved the Court of learned Sessions Judge Karak for the same purpose, but his application was dismissed vide order dated 11.3.2005. Now he has moved this court for his release on bail.
2. Brief facts are that the complainant alongwith Farzand, Akmal Shah and Shaheen Shah was coming from Karri Dand after seeing Cricket Match to their own village; that meanwhile accused Noor Wali, Isam Khan, Umar Daraz, Anwarullah Mujeebullah, Haroon Badshah and Ihsan Shah duly armed with Kalashinkovs appeared and fired at the complainant and others, which caused the death of Ahmed shah and Shaheen Shah, hence the complainant lodged the above mentioned FIR.
3. Haji Muhammad Zahir Shah, Advocate the learned counsel representing the petitioner argued that seven persons were charged for indiscriminate firing and no specific role was attributed to the accused-petitioner.
4. It was also argued that no empty was recovered from the spot where the accused-petitioner was shown present in the same plan prepared by the I.O.
5. It was also argued that the medical evidence shows that the dimensions of the injuries were one and the same and it appears that it was the act of one person, but seven persons have been charged for the commission of offence. Reliance was placed on the following authorities:--
1. PLJ 2003 Criminal Cases (Lahore) 634, 2.and 2002 P.Cr.L.J. 775.
6. It was further argued that the accused-petitioner was a Government servant and many persons have filed affidavit that he was present at the time of occurrence at his place of duty.
7. On the other hand Malik Akhtar Naveed DAG and Mr. Muhammad Amin Khattak Lachi Advocate argued that the accused petitioner is directly charged in the promptly lodged FIR.
8. It was fiirther argued that 36 empties were recovered from the spot and the post mortem reports show that two persons were done to death. The post mortem reports fully support the prosecution case.
9. It was also argued that not only Farzand Ali an eye-witness supported the case of prosecution in his statement recorded u/S. 161 Cr.P.C. but Akhtar Jamil, whose statement was recorded u/S. 164 Cr.P.C., also proved the motive. Being day light occurrence, it was argued, there was no question of mistaken identity of the accused.
10.I have heard the learned counsel for the parties and perused the available record.
11.In this case two persons namely Akmal Shah and Shaheen Shah was done to death in a broad day light occurrence, which took place at 12,45 hours. The accused-petitioner has been directly charged in the promptly lodged. Flit for effective firing. From the place of occurrence, the I.O. recovered 36 empties of 7.62 bore. Perusal of the post mortem reports of the deceased sows that Akmal Shah deceased received 6 entry, 6 exit and one graze wounds, whereas Shaheen Shah deceased received 5 entry, 5 exit and one graze wounds on their person. The post mortem reports fully support the case of prosecution. The occurrence was witnessed by Farzand Ali, who in his statement recorded u/S. 161 Cr.P.C. supported the case, of prosecution. In order to prove the motive, statement of Akhtar Jamal was recorded under Section 164 Cr.P.C. on 6.10.2004, who narrated the motive in his said statement.
12. So far as the plea of alibi taken by the petitioner is concerned, perusal of the record shows that such plea was not taken before the learned Judicial Magistrate. However application for bail submitted before the learned Sessions Judge Karak shows that the petitioner took up the plead that at the time of occurrence he was not person in village and had gone out I of the village due to his personal engagements, but he did not mentioned as to where he had gone at that particular time., Since the petitioner himself has not taken any specific plea of alibi, therefore, the same cannot be taken into consideration at this stage.
There is a strong prima facie case connecting the accused petitioner with the commission of offence falling within the prohibitory clause of Section 497 Cr.P.C. I, therefore, do not feel inclined to release the accused petitioner on bail. The bail petition in hand is dismissed.