ASMAT ALI vs STATE and another
This is a criminal petition filed by Asmat Ali seeking post-arrest bail after his bail application was rejected by the Anti-Terrorism Court D.I.Khan in a case registered under Sections 3 and 4 of the Explosive Substances Act 1908 read with Section 7 of the Anti-Terrorism Act 1997. The core legal question was whether the petitioner, who was driving the vehicle from which a co-accused was found possessing incriminating materials, was entitled to bail on the ground of further enquiry when no incriminating material was recovered directly from his physical possession and the investigation was complete. The Peshawar High Court held that a tentative assessment of the available material brought the case within the ambit of further enquiry since nothing incriminating was recovered from the petitioner's physical possession and he was no longer required for investigation. The court laid down the principle that where an accused person is merely driving a vehicle hired as a taxi and no incriminating substances are recovered from his direct possession, his case falls within the scope of further enquiry under Section 497(2) of the Code of Criminal Procedure 1898, warranting the grant of post-arrest bail.
- Whether an accused found driving a vehicle containing incriminating materials recovered from a co-accused is entitled to post-arrest bail?
- Does the lack of recovery of incriminating material directly from the physical possession of an accused bring his case within the scope of further enquiry?
- Can bail be granted when the investigation is complete and the accused is no longer required for investigative purposes?
- Section 3, Explosive Substances Act 1908
- Section 4, Explosive Substances Act 1908
- Section 7, Anti-Terrorism Act 1997
- Section 497, Code of Criminal Procedure 1898
After the rejection of his application for bail by the learned Judge, Anti-Terrorism Court D.I.Khan vide order dated 25//3/2008 in case FIR No, 23 dated 19/1/2008 registered under Sections 3/4 of the Explosive Substances Act read with Section 7 of Anti-Terrorism Act at Police Station Cantt: D.I.Khan, the accused/petitioner Asmat Ali, has come up to this Court for the same purpose through the application in hand.
2. The FIR reveals that the accused/petitioner alongwith one Etizaz Shah were arrested by the police party of Police Station Cantt: D.I.Khan on 19/1/2008 at 1700 hours when they were found sitting in suspicious condition in an un-numbered white colour Toyota Corolla Motorcar on Nakabandi point near the under-construction Girls College in front of Central Jail D.I.Khan and a huge quantity of incriminating materials were recovered from the physical possession of accused Etizaz Shah. The accused/petitioner was driving the said motorcar at that time, but he had failed to produce any - valid documents in respect of the motorcar in question.
3. It was argued by learned counsel for the petitioner that there is no direct evidence on record to connect the accused/petitioner with the offence; that nothing incriminating was recovered from his conscious and physical possession; that the petitioner was driving the motorcar at the relevant time as a Taxi which the accused Eitzaz Shah had hired from Bannu to D.I.Khan and that investigation in the case is complete and the petitioner is no longer required for the same purpose.
4. Learned counsel for State has, however, opposed the grant of bail to the petitioner on the ground that he was arrested alongwith co-accused Etizaz Shah in suspicious condition in an un-numbered motorcar; that he had failed to produce any valid documents for the vehicle in question and that he is equally responsible alongwith his co-accused Etizaz Shah, from whose direct and physical possession a huge quantity of incriminating materials had been recovered.
5. I have considered the arguments advanced at the bar and gone through the record of the case.
6. Be that as it may, but presently tentative assessment of the materials available on record, prima facie, brings the case of accused-petitioner within the ambit of 'further enquiry', as nothing incriminating has been recovered from his physical possession; investigation in the case is complete and the petitioner is no more required for the purposes of investigation.
7. Therefore, this application is allowed and the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs, five lacs with three sureties in the like amount each to the satisfaction of Ilaqa/Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means.
Above are the reasons for my short order of even date.