AYAZ vs STATE and another
This criminal miscellaneous application was filed by the petitioner, Ayaz, seeking post-arrest bail in a case registered under Section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The petitioner was accused of robbery involving a pistol, mobile phone, and cash. Although the petitioner was not named in the initial FIR, he was subsequently arrested following a police encounter involving cross-firing at a different location, where the vehicle used in the robbery was recovered. The complainant later identified the petitioner in a statement recorded under Section 164 of the Code of Criminal Procedure 1898, and the petitioner pointed out the place of occurrence. The Court noted that while no physical hurt was caused, the amount stolen exceeded the 'nisab'. The Court held that reasonable grounds existed to believe the petitioner committed the offence, which falls within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898. Consequently, the bail application was dismissed, and the prosecution was directed to submit a complete challan within a fortnight.
- Whether an accused not named in the initial FIR can be denied bail if subsequently identified and linked to the offence?
- Does an offence under Section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance 1979 fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Can a statement recorded under Section 164 of the Code of Criminal Procedure 1898 be used to establish reasonable grounds for refusing bail?
- Section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance 1979
- Section 324, Pakistan Penal Code 1860
- Section 353, Pakistan Penal Code 1860
- Section 427, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 420, Pakistan Penal Code 1860
- Section 13, Arms Ordinance 1965
- Section 164, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
Through this Cr. Misc. application Ayaz son of Gul Noor, petitioner seeks his release on bail. He was charged under Section 17(3) of the. Offences Against Property (Enforcement of Hudood) Ordinance, 1979, vide FIR No, 461 dated 24.9.2007, Police Station University Town, Peshawar.
2. Facts of the case briefly narrated are that Almas Khan son of Imroz Khan lodged a report in Police Station, University Town, Peshawar that he is running an Ice Cream shop on University road.
Peshawar. It was the month of Ramzan and after `aftarr he went to meet his friend Ashraf, who sells milk on old Bara road Peshawar. As Ashraf was not available in his shop, so he was coming back on foot to his shop situated at University road, Peshawar. When he reached near the Custom House, a white Corrolla Car, which was having a black number plat, Bearing No, 715 RIL, was parked. Four persons were also standing by the car and the complainant reached there. One of them aimed pistol at the complainant, snatched a Benqu mobile and cash amount of Rs, 21610/-. They boarded the car and decamped from the spot.
3. The petitioner submitted application to the trial Court for his release on bail, which was rejected on 26.10.2007. Then he applied to the Court of Sessions for the same relief. The learned Additional Sessions Judge-XII Peshawar refused to grant bail to the petitioner. Dissatisfied with the orders of the two Courts below, the petitioner has come to this Court for his release on bail.
4. Learned counsel for the petitioner submitted detailed written arguments, placed on file.
Complainant Almas, present on Court, was heard in detail and similarly Mr. Muhammad Saeed Khan Shangla, Additional Advocate-General was also heard in support of his contentions. He contended that such like offences are being repeated and the accused-petitioner has a direct nexus with the commission of the offence.
5. It was vehemently submitted by the learned counsel for the petitioner Mr. Javed A-Khan, Advocate that the petitioner has not been charged in the FIR and no such like previous occurrence has been attributed to him, thus he may be released on bail (sic).
6. Although the petitioner has not been charged in the FIR but the police while cordoning the area had intercepted the motor car at Kohat Chowk and an encounter took place. There was cross firing from both the sides, in which the present petitioner was also arrested. FIR of that occurrence was lodged Bearing No, 755, Police Station Yakka Toot under Sections 324/353/427/34/420 PPC and 13 A.O. Statement of the complainant Almas Khan was recorded under Section 164 Cr.P.C. in which he has duly charged the accused for commission of the offence. The accused has also pointed out the place of occurrence, in which the Complainant had been deprived from a mobile phone arid cash amount of Rs, 21,610/-.
7. The accused has been intercepted by the local police of Police Station Yakka Toot and exchange of fire took palce with the police, in which two accused of FIR No, 775 were killed and the car was taken into custody by the local police. Although the offence is heinous but more important is the way and venue of occurrence, which has become a common routine in our society and this has weakened the society to such an extent that the society is a moths eaten society.
8. The offence carries a severe punishment of which the petitioner is charged, though no hurt has been caused but an amount of C more than the `nisab' has been taken away from, the petitioner.
Thus in the present circumstances reasonable grounds exist to believe that the petitioner has committed an offence, which comes within the prohibitory clause of Section 497 Cr.P.C. Finding no force in the present bail application, the same is dismissed.
As the investigation of this case is complete, the prosecution is directed to submit complete challan to the trial Court within a fortnight.