MUHAMMAD SHAFA and 6 others vs THE STATE
The petitioners sought post-arrest bail in a case registered under sections 302, 109, 34, 436, 452, 324, and 114 of the Pakistan Penal Code read with sections 6 and 7 of the Anti-Terrorism Act, arising from an incident involving murder, arson, and attack by bandit attackers. The core legal question was whether the petitioners were entitled to post-arrest bail given that they were not named in the F.I.R. but implicated through subsequent witness statements and telephonic call records. The Northern Areas Chief Court held that the omission of names in the F.I.R. does not prejudice the prosecution where the complainant was not an eye-witness, and that prima facie material, including call records and witness statements under section 161 of the Code of Criminal Procedure, connected the petitioners to the alleged abetment. Furthermore, the trial had already commenced before the Anti-Terrorism Court. The court laid down the principle that at the bail stage, deep appreciation of evidence is unwarranted, and where prima facie connection is established and trial is underway, bail should be declined.
- Does the omission of an accused's name in the F.I.R. entitle them to post-arrest bail when the complainant is not an eye-witness?
- Can telephonic records and statements under section 161 of the Code of Criminal Procedure establish a prima facie connection for refusing bail?
- Is further inquiry under section 497(2) of the Code of Criminal Procedure attracted when the trial has already commenced and evidence is being recorded?
- Section 302, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 436, Pakistan Penal Code 1860
- Section 452, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 114, Pakistan Penal Code 1860
- Section 6, Anti-Terrorism Act 1997
- Section 7, Anti-Terrorism Act 1997
- Section 497(2), Code of Criminal Procedure 1898
- Section 161, Code of Criminal Procedure 1898
1. ' SAHIB KHAN, J.--- Through the instant bail petition petitioners seek their post-arrest bail as their request for bail was turned down by the Judge, Anti-Terrorism N.As. Gilgit.
2. ' Accused/petitioners are facing trial in a case registered under F.I.R. No,13 of 2005 of Police Station City, Gilgit dated 8-1-2005 under sections 302/109/34/436/452/324/114, P.P.C. Read with sections 6/7 of A.T. Act.
3. ' Brief facts as narrated in the F.I.R. Are that complainant on receiving a telephone message from his niece that bandit attackers have fired on his father Taighoon Nabi D.F.O. And put on fire to their house. He rushed to the horse of Taighoon Nabi deceased and found an injured person who told him that Taighoon Nabi has escaped. Complainant took this injured person to the hospital and came back with some other persons and entered into the house of Taighoon Nabi where he found Taighoon Nabi in dead condition on a sofa while Arsalan disabled son of the deceased was found safe and smoke was rising from the said house. On opening the windows and doors, they heard voice coming from the room. He along with others brought them out and took the dead body of Taighoon Nabi to hospital, and on the advice of his cousin Munir brought his sister to his house.
4. ' The learned counsel for the petitioner contended that the accused/petitioners were not directly charged in the F.I.R. The statements of P.Ws. Do not establish any case against the petitioners. The prosecution named 47 P.Ws. In calendar of challan with mala fide intention just to delay the trial and torture the petitioners. There is no possibility of conviction of the petitioners and they are behind the bars for a considerable period for nothing the case falls within the ambit of section 497(2), Cr.P.C. He referred:--- ' 2004 SCM R 1560, PLD 2003 Pesh. Page 38 and 1999 NLR page 384.
5. ' The learned counsel for the complainant vehemently opposed the petition with the contention that the petitioners are involved in a case against the Society not against an individual. The statements of P.Ws. Muhammad Hussain, Aziz-ur-Rehman and Sanaullah have fully corroborated the prosecution story. Such a heinous crime has been committed with the abetement of the petitioner who induced the offenders by telling them telephonically whereabouts of the deceased/ victims. He termed further inquiry in the cases of A.T.A. Is prompt trial by A.T.C. Which has commenced already and case is fixed for evidence.
6. ' The learned Advocate-General supported the arguments advanced by the counsel for the complainant with the addition that the prosecution has collected material evidence against the petitioner connecting them with the offences levelled against them. The telephonic call records collected from S.C.O. Office clearly indicate the role of the petitioners and they are fully responsible for the occurrence. Moreover, the accused petitioners have remained absconders for a long period as such the concession of bail cannot be given to the petitioners. The case , against them is fixed for evidence on 15-12-2005, in the trial Courts.
7. ' He referred 1988 SCMR 109, PLD 1992 Pesh. p.74 and 2003 SCM R 1696 (p.1696).
8. ' I have gone through the record of the case and taken into consideration the arguments advanced by the learned counsel for the parties and have also gone through the case-laws.
9. It is true that the petitioners are not named in the F.I.R. But the complainant did not claim to be an eye-witness of the occurrence. Hence, merely not naming the petitioners in the F.I.R. Does not reflect any adverse effect to prosecution. Both parties have relied on the evidence of P; Ws. It will not be proper to go into the merits of the' case at the stage of bail. However, the telephonic contact and record of the Telephone Department produced by the prosecution materially connect the petitioners in abatement of the alleged offence. The P. Ws. In their statements have narrated the story supporting each other and found no material discrepancy tentatively, especially, the statement of P.W. Sanaullah recorded under section 161, Cr.P.C. Is relevant in this regard. P.W.
10. Mehboob has stated that some of the petitioners were seen with the absconding .Accused after attacking the house of deceased Taighoon Nabi. I feel it prima facie case is in the hands of prosecution.
11. ' Moreover, the trial of the case has commenced and the case is fixed for evidence to 15-12-2005, before A.T.C. Gilgit and the case has already been fixed for evidence.
12. ' In the circumstance the authorities referred by L.C.P. Are not relevant. I declined the petition.