SAKHI ZAMAN and another vs THE STATE and 2 others
This is a criminal petition filed by Sakhi Zaman and his son Naik Zaman seeking post-arrest bail in case F.I.R. No. 61 dated 13-8-2004 registered under sections 320/34 of the Pakistan Penal Code 1860 and sections 3/4 of the Explosive Substances Act 1908 at Police Station Township, Bannu, concerning an explosion that resulted in a fatality and injuries. The core legal question is whether the petitioners are entitled to post-arrest bail given the delayed direct charge against them by an injured witness under sections 161 and 164 of the Code of Criminal Procedure 1898. The Peshawar High Court dismissed the bail application, holding that a tentative assessment of the material collected during investigation—including the statements under sections 161 and 164 of the Code of Criminal Procedure 1898 directly charging the petitioners—prima facie connects them to the offence, making deeper appreciation of evidence impermissible at the bail stage. The court affirmed that bail must be refused when reasonable grounds exist to believe the accused committed the crime.
- Whether post-arrest bail can be granted when an injured witness has directly charged the accused in statements recorded under sections 161 and 164 of the Code of Criminal Procedure 1898?
- To what extent can a court examine the merits and evidence of a case during a bail stage hearing?
- Does a delayed direct charge in a supplementary statement necessarily warrant the grant of bail to the accused?
- Section 320, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 3, Explosive Substances Act 1908
- Section 4, Explosive Substances Act 1908
- Section 161, Code of Criminal Procedure 1898
- Section 164, Code of Criminal Procedure 1898
' Sakhi Zaman and his son Naik Zaman petitioners stand involved in case F.I.R. No,61, dated 13-8- 2004 registered at Police Station Township, Bannu under sections 320/34, P.P.C. Read with sections 3/4 of Explosive Substances Act, 1908. They have moved instant application seeking their release on bail after refusal of the same from two forums below vide orders, dated 6-9-2004 and 14-9- 2004 respectively.
2. The petitioners are accused of having on 13-8-2004 at 0300 hours caused explosion in the Baithak of Obaidullah complainant as a result of which Laiq Zaman lost his life whereas his son Noor Zaman sustained injuries.
3. Mr. Gauhar Zaman Khan Kundi, Advocate for the petitioners contended that the petitioner were belatedly charged on 18-8-2004 which was the outcome of premeditation, pre-consultation and ulterior motive; that occurrence having taken place during dark hours of the night, identification was not possible and that petitioner Sakhi Zaman being an aged man, was not physically capable of climbing over a wall of 10/12 feet high and facilitate the crime. To substantiate the pleas, he placed reliance on Muhammad Amin alias Irfan and another v. The State (2004 SCM R 1560), Ali Gul. v. The Stae (2003 SCM R 201), Umar Hayat v. The State (PLD 1995 SC 526) and Azim and others v. The State (2004 PCr.LJ 145).
4. Mr. Muhammad Sharif Chaudhary, learned Deputy Advocate-General for the State assisted by Mr. Alamgir Khan Wazir, Advocate for the complainant opposing the bail application, contended that the prosecution has collected sufficient material to connect the petitioners with the commission of crime, therefore, the petitioners have been refused the concession of bail for cogent reasons and the impugned order is not open to exception. Reliance was placed on PLD 2004 SC 822 and 2004 PCr.LJ 1801.
5. The question of grant/refusal of bail is to be determined judiciously having regard to the facts and circumstances of the case. Where the prosecution satisfies the Court that there are reasonable grounds to believe that the accused has committed the offence falling in the first category, the Court must refuse bail. On the other hand, where the accused satisfies the Court that there are no reasonable grounds to believe that he is guilty of such offence, then the Court must release him on bail. For arriving at the conclusion as to whether, or not there are reasonable grounds to believe that the accused is guilty of offence, the Court will not conduct a preliminary inquiry/trial but will only make tentative assessment i.e, will take all the material collected by the police for and against the accused and be prima facie satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference of guilt. Deeper appreciation of the evidence and circumstances appearing in the case is -neither desirable nor permissible at bail stage. So, the Court will not minutely examine the merits of the case or plea of defence at that stage.
6. No doubt it is true that the petitioners are not directly charged in the F.I.R. But it is equally true that on 18-8-2004 statement of Noor Zaman injured was recorded under section 161, Cr.P.C. Who has directly charged the petitioners for commission of the offence. He also recorded his statement under section 164, Cr.P.C. Before a competent Court wherein too, he has charged the petitioners. In such circumstances, I am of the view that apparently no case for grant of bail has been made out and the Courts below have rightly declined bail to the petitioners. The application fails which is hereby dismissed. .