KHALID USMAN vs STATE and another
This criminal petition arose out of a post-arrest bail application filed by the accused/petitioner, who was implicated under Section 17(3)(2) (Haraabah) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, following an incident of armed robbery and shooting at night against initially unknown persons. The core legal questions before the Peshawar High Court were whether an uncompoundable offence could be considered alongside other mitigating circumstances for grant of bail, and whether substantial unexplained delay in nominating the accused in a supplementary statement under Section 161 of the Code of Criminal Procedure 1898 justified the concession of bail. The High Court granted bail, holding that the occurrence took place in darkness, the initial report was against unknown culprits, and the subsequent nomination came after an unexplained delay of one month and eight days without any recovery or confession. The Court established that even where an offence is non-compoundable, an effected compromise between parties can be taken into consideration alongside other material facts on record when evaluating a bail application.
- Can a compromise between the complainant and the accused be considered for the grant of bail in a non-compoundable offence?
- Whether an unexplained delay of more than a month in nominating an accused via a supplementary statement under Section 161 Cr.P.C. makes out a case of further inquiry for post-arrest bail?
- Does the absence of incriminating recovery and lack of confession during police custody support the grant of bail in a night-time robbery case initially lodged against unknown persons?
- Section 17(3)(2), Offences Against Property (Enforcement of Hudood) Ordinance, 1979
- Section 161, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
Petitioner, Khalid Usman, seeks his release on bail in case FIR No, 102 dated 1.1/3/2008 registered under Section 17(3)(2) Harrabah, Offences. Against Property (Enforcement of Hudood) Ordinance, 1979 in Police Station Gomal University D.I. Khan, as he has failed to get the said concession from the Courts of learned Judicial Magistrate-III and learned Additional Sessions Judge-III D.I.Khan vide orders dated 10/5/2008 and 26/5/2008 respectively.
2. As per FIR lodged by Ghulam Farid in injured condition in the emergency ward of Civil Hospital D.I.Khan on 1/3/2008 at 0035 hours, he alongwith Javed had brought sheep herd to the Firm where his brother Umer Khitab as a Baildar, Misal Khan a Cook and Afzal Punjabi an Account Officer alongwith other labourers were present, while the complainant was in an independent Courtyard.
At about 10'00 hours, he heard fire shots due to which he rushed towards the Haveli of Afzal Punjabi and saw three persons, by features Pathan. Of them one was of high height while the other two were of small. The man of high height fired at him with which he was hit and threatened him to go back whereafter the accused took away the motorcycle of Afzal Punjabi, his mobile phone and Rs, 700/- cash alongwith his shirt. His report was accordingly registered against unknown persons.
3. Learned counsel for the petitioner argued that the petitioner is innocent and falsely roped in the offence for ulterior motive; that the occurrence is of night and the report was lodged against unknown persons; that the accused/petitioner is belatedly charged by the complainant in his supplementary statement recorded under Section 161 Cr.P.C. after about one month and eight days; that no source of satisfaction is given by the complainant; that the petitioner is not directly charged by the complainant; that nothing incriminating has been recovered from him nor he has made any extra judicial confession despite the fact that he had remained in police custody for two days and that investigation in the case is complete and the petitioner is no more required for the same purpose.
4. The learned Deputy Advocate General resisted the application on the grounds that the offence falls under the prohibitory clause of Section 497 Cr.P.C., the petitioner is directly nominated by the complainant in his subsequent statement before the police recorded under Section 161 Cr.P.C. and identified in the Identification Parade conducted by the Judicial Magistrate.
5. On 19/6/2008 complainant Ghulam Farid son of Muhammad Hanif, appeared before this Court and submitted compromise that due to the intervention of Gul Khan son of Baran, he has effected compromise with the accused/petitioner and has forgiven him in the name of Allah Almighty. In this respect the statements of complainant and the Elder of the Locality, namely, Baran, were recorded and placed on file. Though the offence with which the accused-petitioner is charged is not compoundable, but the same can be taken into consideration alongwith other material facts available on the record.
6. I have considered the arguments of the learned counsel for the parties and gone through the record.
7. Admittedly, the occurrence had taken place at dark hours of the night where none was specifically charged by the complainant; the subsequent nomination by the complainant in his statement under Section 161 Cr.P.C. was after a considerable unexplained delay of about one month and eight days; no incriminating material has been recovered from the direct and physical possession of the accused/petitioner; and that despite having remained in police custody, the petitioner has not confessed to the guilt, are the grounds which, prima facie, makes the case of the accused/petitioner arguable for the purposes of bail.
8. This application is, therefore, allowed and the accused/petitioner is admitted to bail, subject to his furnishing bail bond, in the sum of rupees two lacs with two sureties each in the like amount to the satisfaction of Ilaqa/Judicial Magistrate.
Above are the reasons for my short order of even date.