HABIB-UR-REHMAN alias BABRU vs Mst. NOOR NAMA and another
This criminal petition arises from an application for post-arrest bail filed by Habib-ur-Rehman alias Babru in case F.I.R. No. 25 registered under sections 302 and 34 of the Pakistan Penal Code 1860 at Police Station Lakki Marwat. The core legal question was whether the petitioner made out a case for further inquiry to entitle him to bail, considering the lack of direct ocular testimony by the complainant, the absence of specific roles attributed in the initial report, and the lack of incriminating recoveries. The Peshawar High Court held that the case of the petitioner prima facie fell within the ambit of further inquiry, as no specific role was attributed, no incriminating material was recovered despite physical custody, and the deceased was involved in prior criminal cases. The court laid down the principle that where tentative assessment shows lack of specific active role, absence of recovery, and circumstances requiring further inquiry into the petitioner's guilt, the accused is entitled to post-arrest bail.
- Whether an accused is entitled to post-arrest bail when no specific role is attributed in the promptly lodged F.I.R.?
- Does the absence of incriminating recoveries from the physical custody of the accused bring his case within the scope of further inquiry?
- Can bail be granted under section 497, Code of Criminal Procedure 1898 when a tentative assessment of the material reveals reasonable grounds for further inquiry into the guilt of the accused?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
' MUHAMMAD ALAM KHAN, J.---Habib-ur-Rehman alias Babru, petitioner herein, has filed this application for his release on bail in case F.I.R. No,25 dated 23-1-2008 under section 302/ 34, P.P.C.
Registered at Police Station Lakki Marwat, as he has failed to get the said concession from the Courts of learned Judicial Magistrate and learned Additional Sessions Judge-I Lakki Marwat vide their orders, dated 29-4-2008 and 2-5-2008 respectively.
2. According to the report of Mst. Noor Nama lodged on 23-1-2008 at 1445 hours, she along with her sister Mst. Gul Marra was present in her house when she received information that her son named Qutab had killed Dilawar son of Sardar Khan, co-villager, over which she along with her said sister came out of the house and when reached the shops situated in the main Chowk of village Aba Khel, saw that her said son Qutab was caught hold of by accused Babru son of Mirbaz, Papu, Khani, sons of Maidel and Rashid an unknown person, their co-villagers, thrown him in a motorcar and went away. They were followed by said Mst. Gul Marra and at about 1245 hours, she heard fire shots towards the lands of Aba Khel. Soon thereafter the complainant and her sister went there and saw that the accused after killing her son Qutab Shah were fleeing from the spot. Motive for the offence was stated to be the killing of Dilawar by the deceased Qutab Shah. The aforesaid persons were, therefore, charged as accused in the F.I.R. Ibid.
3. Learned counsel for the petitioner argued with great vehemence that the occurrence is an unseen and there is nothing on the record to connect the accused/petitioner with the commission of the offence; that there is no independent eye-witness in the case; that the deceased was a hardened and dangerous criminal involved in various murder cases vide F.I.Rs No,24 dated 23-1- 2008, F.I.R. No .393 , dated 25-11-2001 and F I . R. No,83, dated 6-3-2001; that the accused/ petitioner had no enmity to commit murder of the deceased and thus the prosecution story is fabricated; that no specific role has been assigned to the accused/petitioner; that the site plan negates the version of the complainant put forth in her initial report and that nothing incriminating has been recovered from the accused/petitioner so as to connect him with the crime.
4. Learned counsel for the State resisted the bail prayer of the petitioner on the grounds that he is directly charged in the promptly lodged F.I.R. No,64 of the complainant duly backed by a strong motive, specific role has been assigned to him, medical evidence and site plan support the prosecution version, he has remained fugitive from law for a considerable long and unexplained period and that the offence falls under the prohibitory clause of section 497, Cr.P.C.
5. The complainant Mst. Noor Nama, appeared in person and she also prayed for the dismissal of this petition.
6. Arguments heard and record perused.
7. Admittedly, the deceased was charged in different murder cases and no specific role has been attributed to the petitioner by the complainant in her first report. The occurrence was not alleged to have been witnessed by the complainant herself but she had heard report of fire shots only. No empty has been recovered from the place of occurrence and despite the fact that the accused/petitioner had remained in physical custody of the police, no incriminating material was recovered from him. From the tentative assessment of the materials so far brought on record, prima facie, the case of the petitioner falls within the ambit of 'further enquiry' entitling him to the concession of bail. Reliance in this respect is placed on the case law reported as Muhammad Jamil v. Shaukat Ali and another (1996 SCM R 1685), Abdul Saleem v. The State (1998 SCM R 1578), Kamran Ali and others v. The State (2000 Cr.L.J 569), Allah Dino and 6 others v. The State (2003 PCr.LJ 135), Noor Habib v. The State (1999 PCr.LJ 990), Abdullah alias Mali v. The State (2000 PCr.LJ 768), and Babar v. The State (2000 PCr.LJ 1262).
8. Consequently, this application is allowed and the accused/petitioner is admitted to bail in the sum of Rs, two lacs with two sureties each in the like amount 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.