HAROON BADSHAH vs THE STATE and another
The petitioner, charged under sections 302, 324, 148, and 149 of the Pakistan Penal Code 1860 for his alleged involvement in a double-murder case, sought post-arrest bail after his previous applications were dismissed by the lower courts. The petitioner argued that no specific role was attributed to him, that medical evidence suggested the injuries were caused by a single person, and that he had an alibi as a government servant. The prosecution opposed the bail, citing the petitioner's direct nomination in the promptly lodged F.I.R., the recovery of 36 bullet empties from the scene, and corroborating statements from eye-witnesses recorded under sections 161 and 164 of the Code of Criminal Procedure 1898. The Court held that the petitioner was directly charged in a daylight occurrence supported by medical and testimonial evidence. Furthermore, the Court rejected the plea of alibi, noting it was inconsistent and not properly raised. Consequently, finding a strong prima facie case falling within the prohibitory clause of section 497, Code of Criminal Procedure 1898, the Court dismissed the bail petition.
- Can a plea of alibi be considered for bail if it was not consistently or specifically raised in earlier proceedings?
- Does the presence of a direct charge in a promptly lodged F.I.R. regarding a daylight occurrence constitute sufficient grounds to deny bail?
- Is bail appropriate when the offense falls within the prohibitory clause of section 497, Code of Criminal Procedure 1898, and there is strong prima facie evidence connecting the accused?
- 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 F.I.R. No.35, dated 1-10-2004 under sections 302/324/148/149, P.P.C. at Police Station 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 release 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 along with 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 kalashnikovs appeared and fired at the complainant and others, which caused the death of Akmal Shah and Shaheen Shah, hence the complainant lodged the above mentioned F.I.R.
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 site plan prepared by the Investigating Officer.
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) 2003 PCr.LJ 1738 (2) 2002 PCr.LJ 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, D.A.-G. and Mr. Muhammad Amin Khattak Lachi, Advocate argued that the accused petitioner is directly charged in the promptly lodged F.I.R.
8. It was further 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 under section 161, Cr.P.C. but Akhtar Jamil, whose statement was recorded under section 164, Cr.P.C., also proved the motive. Being daylight 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 were done to death in a broad- daylight occurrence, which took place at 12-45 hours. The accused-petitioner has been directly charged in the promptly lodged FIR. for effective firing. From the place of occurrence, the Investigating Officer recovered 36 empties of 7.62 bore. Perusal of the post-mortem report of the deceased shows 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 persons.
The post-mortem reports fully support the case of prosecution. The occurrence was witnessed by Farzand Ali, who in his statement recorded under section 161, Cr.P.C. supported the case of prosecution. In order to prove the motive, statement of Akhtar Jamil 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 plea that at the time of occurrence he was not present in village and had gone out of the village due to his personal engagement, but he did not mention 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.