BAHAR and another vs STATE and another
The accused-petitioners sought post-arrest bail in case F.I.R. No. 1043 dated 26.12.2004 registered under Sections 381-A, 337-J, and 34 of the Pakistan Penal Code 1860 at Police Station Daggar, after their earlier bail applications were dismissed by the lower courts. The core legal question was whether the petitioners were entitled to post-arrest bail given the incriminating recoveries and subsequent statements implicating them. The Peshawar High Court dismissed the bail petition, holding that a prima facie case existed connecting the petitioners to the offense. The Court based its decision on the supplementary statement and statement under Section 164 of the Code of Criminal Procedure 1898 implicating the accused, the recovery of the snatched vehicle, un-licensed pistol, and the complainant's identity card and driving license from the possession of the petitioners on the day of the occurrence, as well as their involvement in another criminal case registered under Sections 186, 353, and 427 of the Pakistan Penal Code 1860 and Section 13 of the Arms Ordinance 1965. The key principle laid down is that where incriminating recoveries including the subject of the crime and personal documents of the complainant are made from the accused upon arrest, and a prima facie connection to a heinous offense is established, the concession of bail is rightly refused.
- Whether an accused is entitled to post-arrest bail when incriminating stolen property and personal documents of the complainant are recovered from his possession?
- Does the absence of the accused's name in the initial FIR disentitle the prosecution from relying on a subsequent supplementary statement and statement under Section 164 Cr.P.C. for establishing a prima facie case?
- Whether involvement in another criminal case registered on the same day affects the consideration for grant of bail?
- Section 381-A, Pakistan Penal Code 1860
- Section 337-J, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 164, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
- Section 186, Pakistan Penal Code 1860
- Section 353, Pakistan Penal Code 1860
- Section 427, Pakistan Penal Code 1860
- Section 13, Arms Ordinance 1965
Having been involved in case vide F.I.R. No, 1043 dated 26.12.2004 at P.S. Daggar under Sections 381- A/337-J/34 PPC, accused-petitioners applied for their release on bail in the Court of learned Judicial Magistrate but their application was dismissed vide order dated 19.1.2005. Thereafter, they applied for their release on bail in the Court of learned Sessions Judge/Zilla Qazi, Buner at Dagar but their application was rejected vide order dated 11.2.2005. Now they have moved this Court for their release on bail.
2. Mr. Abdul Latif Afridi, Advocate the learned counsel representing the accused-petitioners argued that there was a delay of .3 hours in lodging the report. The. F.I.R. was lodged after" due deliberations and consultations in which none was charged by the complainant.
3. It was further argued that although statement of the complainant under Section 164 Cr.P.C. was recorded on 7.1.2005 but the same was not reliable as it had been recorded after 13 days of occurrence and during this period the complainant was briefed about the names etc. of the petitioners by the local police. Reliance is placed on 2003 SCM R 426.
4. It was also argued that in the statement recorded on 7.1.2005. neither the features of the accused nor their description/identification was given by the complainant.
5. It was further argued that provision of Section 337-J PPC were not applicable in the case in hand because no poison whatsoever was used by the petitioners. Likewise the punishment provided under Section 381-A PPC is 7 years and the case of the petitioners do not fall under the prohibitory clause of Section 497 Cr.P.C.
6. It was also argued that it was a clear cut case of further inquiry. Bahar accused-petitioner was not given role of snatching and it is yet to be determined after recording evidence as to whether the accused-petitioners were involved in the alleged occurrence or not. Reliance is placed on 2003 P.Cr.L.J. 544.
7. On the other hand Nadir Khan complainant present in Court stated at the bar that being a poor person he cannot engage a counsel and the learned State counsel will argue the case on his behalf.
8. Mr. Akhtar Naveed, learned Deputy Advocate General representing the State opposed the grant of bail and argued, that on the day of occurrence when the case was registered against the petitioners, the officials of Ghaligai Police Station arrested the accused-petitioners and from their possession not only two vehicles including the car of the complainant were recovered but the Identity Card and driving license of the complainant were also recovered from their possession.
There was a F.I.R. under No, 767 under Sections 186/353/427 PPC And 13 A.O.
9. It was further argued that the supplementary statement of the complainant was recorded on 28.12.2004 and statement under Section 164 Cr.P.C. on 7.1.2005 whereby he charged the accused- petitioners for the commission of the offence. Since prima facie case exists against the accused- petitioners, therefore, they are not entitled to the concession of bail. Reliance is placed on PLD 1997 Supreme Court: 545.
10. I have heard the learned counsel for the parties and perused the record.
11. I am not inclined to enlarge the accused-petitioners on bail. Firstly; because there is a prima facie case connecting them with the commission of offence. No doubt they were not charged by name in the F.I.R. but it was on 28.12.2004 supplementary statement of the complainant was recorded by the Investigating Officer where after his statement under Section 164 Cr.P.C. was also recorded on 7.1.2005 wherein he charged the accused-petitioners for commission of offence.
Secondly; the snatched vehicle was recovered from the possession of the accused-petitioners on the day of occurrence by officials of P.S. Ghaligai, Swat and another vehicle of grey colour was also recovered alongwith un-licensed pistol and F.I.R. No, 767 was registered against them on 26.12.2004 under Sections 186/353/427 PPC and 13 A.O. which shows that, the accused-petitioners were involved in another case too. Thirdly; the Identity Card and driving license of the complainant were also recovered from the possession of the accused petitioners alongwith vehicle (as mentioned above) which prima facie connect them with the commission of offence.
12. Snatching Cars by using various methods has become fashion of the day which has made the life and property of common citizens insecure. The accused-petitioners have been involved in an heinous offence concerning the society large. They, therefore, do not deserve the concession of bail. Resultantly, their bail application is dismissed.