AYAZ vs THE STATE and another
This criminal miscellaneous application was filed by the petitioner 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 mobile phone and cash. Although the petitioner was not named in the initial F.I.R., he was subsequently arrested following an encounter with police involving cross-firing, and was identified by the complainant in a statement recorded under Section 164 of the Code of Criminal Procedure 1898. The core legal question was whether the petitioner was entitled to bail given the evidence of his involvement and the nature of the offence. The Court held that despite the petitioner not being named in the initial F.I.R., the subsequent identification and the circumstances of his arrest provided reasonable grounds to believe he committed the offence. Consequently, the Court dismissed the bail application, noting the offence fell within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898, and directed the prosecution to submit a complete challan within a fortnight.
- Does the absence of an accused's name in the initial F.I.R. automatically entitle them to bail when subsequent evidence links them to the crime?
- 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 denying 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
' MUHAMMAD ALAM KHAN, J.---Through this Criminal Miscellaneous 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 F.I.R. 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 `Aftari' 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 Corrola Car, which was having a black number Plate, 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 Session 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 in 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 F.I.R. And no such-like previous occurrence has been attributed to him, thus he may be released on bail.
6. Although the petitioner has not been charged in the F.I.R. But the police while cordoning the area had intercepted the motorcar at Kohat Chowk and an encounter took place. There was cross-firing from both the sides, in which the present petitioner was also arrested. F.I.R. Of that occurrence was lodged bearing No.775, Police Station Yakka Toot, under sections 324/353/427/34/420, P.P.C. 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 and cash amount of B Rs.21,610.
7. The accused has been intercepted by the local police of Police Station Yakka. Toot and exchange of fire took place with the police, in which two accused of F.I.R. 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 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.