FAZAL BACHA vs ABDUL QADIR and anothers
This bail application arose from a criminal case registered under Section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, and Sections 365-A, 381-A, 148, and 149 of the Pakistan Penal Code 1860, involving allegations of kidnapping and vehicle theft. The petitioner sought post-arrest bail, contending that he was falsely implicated, that there was an unexplained ten-day delay in lodging the FIR, and that no identification parade had been conducted. The court examined the record, noting that the petitioner was directly charged in the FIR, assigned a specific role in the commission of the crime, and that the complainant had been confined in the petitioner's premises, where physical evidence—broken chains—was recovered. The court held that the petitioner was not entitled to bail, emphasizing that the absence of an identification parade does not automatically entitle an accused to bail, as it is merely one method to test witness veracity. Consequently, given the gravity of the offense and the sufficient evidence connecting the petitioner to the crime, the court dismissed the bail application.
- Does the failure to conduct an identification parade automatically entitle an accused person to be released on bail?
- Is an accused person entitled to bail when directly charged in the FIR for a heinous offense with specific roles assigned?
- Can the recovery of physical evidence from the accused's premises be considered sufficient evidence to deny bail?
- Section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance 1979
- Section 365-A, Pakistan Penal Code 1860
- Section 381-A, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
1. ' TALAAT QAYUM QURESHI, J.---Having been involved in a case registered vide F.I.R. No, 627, dated 7- 4-2007 under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with sections 365-A/381-A/148/149, P.P.C., the accused-petitioner applied for his release on bail in the Court of learned Judge, Anti-Terrorism Court, Mardan, but his application was dismissed vide order, dated 28-4-2007. Now he has moved this Court for his release on bail.
2. ' Mr. Jan Muhammad Khan, Advocate, the learned counsel representing the petitioner, argued that the accused-petitioner is innocent and has been falsely involved in the present case with mala fide intention.
3. ' It was argued that no identification parade with regard to accused-petitioner has been conducted in the case till date.
4. ' It was further argued that the occurrence took place on 29-3-2007, while the report had been lodged on 7-4-2007, after the delay of ten (10) days without any plausible explanation, therefore, the petitioner is entitled to be released on bail. Reliance in this regard has been placed on the following judgments:-
(i) Syed Hashim Raza v. The State (1987 PCr.LJ 1609) (Karachi).
(ii) Tariq v. The State (1987 PCr.LJ 972) (Lahore).
(iii) Mahboob Iqbal v. The State (1986 PCr.LJ 2522) (Karachi).
5. ' On the other hand, Mr. Khanzada Ajmal Zeb Khan, Advocate, the learned counsel representing the complainant, argued that the accused-petitioner is not only directly charged in the F.I.R. But also has been mentioned in the F.I.R. For commission of offence.
6. ' It was argued that as per site-plan available on file the complainant was not only kept in the house of accused-petitioner at Mardan but he was also fastened with chains in his baithak, therefore, there is no question to falsely implicate the accused-petitioner in the commission of offence.
7. ' It was further argued that co-accused Javed and Parvez in their confessions attributed the role to accused-petitioner, therefore, h' is not entitled to be released on bail. Reliance in this regard was placed on Rahat Ali v. The State (2001 PCr.LJ 98).
8. ' Likewise, Mr. Obaidullah Anwar, the learned Addl. A.G. Representing the State, argued that the accused-petitioner is directly charged in the F.I.R. By the complainant for the offence in question.
9. ' It was also argued that the challan in the case has been submitted before the Court on 7-5-2007, therefore, at this stage the accused-petitioner is not entitled to the concession of bail.
10. ' I. Have heard the learned counsel for the parties at length and perused the available record.
11. ' Abdul Qadir complainant aged about 20/25 years is a relative and driver of one Qasim, resident of Jhagra, the owner of taxi motorcar No, 8673-Lahore. On 29-3-2007 he was present along with his motorcar in New Adda Taxi Stand at Peshawar, when early in the morning at 6.10 a.m., four (4) young men, who subsequently disclosed to be Javed, Parvez sons of Khushdil of village Bahadar Killi, Charsadda at present Koragh, Fazal Bacha and Bacha Khan residents of Gharib Abad, came to him and booked the taxi for Mardan against the fare of Rs,600. When the motorcar reached at bypass crossing on Nowshera-Mardan Road, out of the passengers Fazal Bacha then sitting with the driver in the 'frontseat took out his pistol and put the barrel upon the head of the driver who due to fear stopped the motorcar. He was pushed away and Parvez one of the passengers controlled the steering wheel while the driver was made to lay on the back seat and he was also blind folded.
12. After covering some distance, the driver was brought down and confined in a baithak by tying his feet. The accused mentioned above left the place in a motorcar while the others subsequently known as Said Rehman of Gharib Abad owner of the baithak, Khaista Rehman and his son Fayyaz, residents of Toru Daftari along with Kifayat son of Jamshed started guarding the driver in the baithak for two hours. They snatched cash amount of Rs,4500 and Nokia Mobile Phone Set was also taken by Said Rehman. He was also threatened by accused to make arrangement for ransom amount. Afterwards the later mentioned four (4) co-accused moved from the baithak towards the house for consultation and Abdul Qadir taking advantage of the situation, broke the chain and rescued himself, straightaway went to his village Jhagra and narrated the occurrence to his paternal uncle. Qasim contacted the accused for release of the car but they were not ready to return the motorcar without payment, hence Qasim Khan owner along with the driver on 7-4-2007 came to Mardan and at 1910 hours met Fazle Wahid Khan S.-I. In college chowk and made a report to him in the light of which he drafted the murasila and the contents whereof were incorporated into F.I.R. Mentioned above.
13. ' In the case in hand the accused-petitioner has been directly charged for the commission of heinous offence. The petitioner has been assigned specific role. The complainant was confined in the baithak of house of the accused-petitioner wherefrom broken pieces of iron chain with which his feet tied, were recovered. The said recovery was witnessed by Bakhtiar son of Musa Khan, an independent witness. There was no previous enmity or to falsely charging the accused petitioner along with his co-accused. There is sufficient evidence available on record to connect the accused-petitioner with the commission of offence.
14. ' The argument of the learned counsel for the petitioner that no identification parade was held, therefore, the petitioner was entitled to be released on bail has no force. It is by now settled principle that holding of identification test, though was not a requirement of law, but it was one of the methods to test the veracity of evidence of an independent eye-witness/complainant, who had an occasion to see and accused and claimed to identify him. Non-holding of the identification parade would not arm the accused-petitioner to claim bail as of right.
15. ' Keeping in view the high rising trend of dacoities which hasmade the lives and properties of citizens unsafe, I am not inclined to release the accused-petitioner on bail. Resultantly, his bail application is dismissed.