MUHAMMAD SARWAR KHAN and 2 others vs THE STATE
The petitioners sought post-arrest bail in case F.I.R. No. 581 of 2005 registered under sections 392 and 109 of the Pakistan Penal Code at Police Station City Hafizabad. The core legal question was whether the petitioners were entitled to post-arrest bail when their names were absent from the FIR, their ages did not match the description of the culprits, their names appeared only in a delayed supplementary statement, no identification parade was held, no recoveries were made from them, and the investigating officer declared them innocent. The court held that the case of the petitioners fell within the scope of further inquiry under subsection (2) of section 497 of the Code of Criminal Procedure. The key principle laid down is that post-arrest bail should be granted when the investigating officer finds the accused innocent and there is a lack of tangible incriminating material, bringing the case within the ambit of further inquiry.
- Whether an accused whose name does not appear in the FIR and is introduced through a delayed supplementary statement is entitled to post-arrest bail?
- Does a police opinion of innocence in favor of the accused make out a case for further inquiry under subsection (2) of section 497 of the Code of Criminal Procedure 1898?
- Is post-arrest bail warranted when no identification parade is held and no recovery is effected from the accused?
- Section 392, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' M. BILAL KHAN, J.---Muhammad Sarwar Khan son of Batay Khan, Muhammad Asif son of Sadiq and Ehsan Ullah son of BashirAhmed, the petitioners, seek post-arrest bail in case F.I.R. No,581 of 2005, dated 16-9-2005 registered at Police Station City Hafizabad, for offences under sections 392 and 109, P.P.C.
2. The case of the prosecution as it unfolded in theregistered at the instance of Razzaq Ahmad son of Mukhtar Ahmad, the complainant, was that between the intervening night of 12th/13th September, 2005 four persons aged between 20 to 25 years out of whom two were armed with daggers one was armed with a pistol while the fourth one was armed with a gun entered into their house by scaling over the wall; they aimed their weapons at the womenfolk and snatched gold ornaments; thereafter by beating them up the keys of the rooms and almirahs were demanded; on refusal the womenfolk were subjected to physical beating whereafter they were shoved into one of the rooms and locked therein; an amount of Rs,25,000 a cellular phone and electronic appliances along with gold ornaments had been taken away; that he has learnt that the incident had been engineered by one Abdul Ghani and his wife Mst. Nusrat Bibi and that it were they who had pointed out their house; he had been entreating the accused persons to return the looted articles; despite promise made to restore the same, they finally refused to do so. Resultantly the instant F.I.R. Had been recorded.
3. The petitioners were arrested on 12-3-2006 and are in custody ever since. Their post-arrest bail application was turned down by the learned Magistrate Sec. 30 on 30-3-2006. Thereafter their application met with the same fate and was dismissed by the learned Addl. Sessions Judge, Hafizabad vide his order, dated 6-4-2006. Hence the instant petition.
4. I have heard Hafiz Ansar-ul-Haq, Advocate the learned counsel for the petitioners as also Mrs. Siddiqa Altaf Khan, Advocate for the State and have perused the record brought by Bashir Ahmad S.I. Police Station City Hafizabad.
5. It has straightaway been observed that the petitioners' name did not feature in the F.I.R.
According to the police record Muhammad Sarwar, Muhammad Asif and Ehsan Ullah, the present petitioners are aged about 30, 27 and 28 years respectively. As such it is clear that they do not even answer the description vis-a-vis. The age of the culprits as mentioned in the F.I.R. Their names cropped up for the first time during the course of investigation when the complainant got recorded his supplementary statement on 14-11-2005 i.e, two months after the lodging of F.I.R. The record also reveals that neither any Identification Parade had been held nor any recovery had been effected from the petitioners. Not only he present petitioners but Muhammad Ashraf their co-accused has also been held innocent by the police. According to the InvestigatingOfficer the petitioners have been challaned only due to insistence of the complainant party otherwise according to him the petitioners did not merit to be challaned there being no tangible material against them. In view of the attending circumstances of the case and the fact that the opinion of innocence has been rendered in their favour by the Investigating Officer, the case of the petitioners becomes one of further inquiry as envisaged by subsection (2) of section 497, Cr.P.C.
6. Resultantly this petition is allowed and the petitioners are admitted to bail provided they furnish bail bonds in the sum of Rs,50,000 each with one surety each in the like amount to the satisfaction of the learned trial Court.