UMAR KHITAAB vs THE STATE and another
This criminal miscellaneous application was filed by the petitioner, Umar Khitaab, seeking post-arrest bail in case F.I.R. No. 21 registered under sections 302/452/34 of the Pakistan Penal Code 1860 at Police Station Tank. The core legal question before the court was whether the petitioner was entitled to the concession of post-arrest bail given the direct charge in the F.I.R., corroboration by ocular testimony, medical evidence, and implication in an offence falling within the prohibitory clause. The Peshawar High Court dismissed the bail application, holding that a tentative assessment of the record reasonably linked the petitioner to the crime which fell within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898. The key principle laid down is that where an accused is directly charged with a capital offence, supported by eyewitness accounts and medical evidence, and the case falls within the prohibitory clause, the concession of bail is ordinarily denied at the pre-trial stage.
- Whether an accused directly charged in an F.I.R. for an offence falling within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898 is entitled to post-arrest bail?
- Does the statement of an eyewitness recorded under section 161 of the Code of Criminal Procedure 1898 provide sufficient corroboration to disentitle an accused to bail at the tentative assessment stage?
- Can a bail petition be dismissed when medical evidence corroborates the prosecution's version of the occurrence?
- Section 302, Pakistan Penal Code 1860
- Section 452, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
' MUHAMMAD ALAM KHAN, J.--- Having remained unsuccessful to get the concession of bail in case F.I.R. No,21, dated 28-1-2008 of Police Station Tank registered under sections 302/452/34, P.P.C. From the Courts of learned Judicial Magistrate and learned Sessions Judge, Tank vide orders dated 29- 2-2008 and 1-4-2008 respectively, Umer Khitab, accused/petitioner, has filed the application in hand for the same relief.
2. According to the F.I.R. Lodged by Mst. Ghulam Bibi, on the eventual day at 1200 hours she was present in her house when suddenly heard report of fire shots in the house of her son Ramzan and when reached there, three persons, namely, Qaizar, Umar Khitab and Qalu Khan duly armed with weapons were running coming out of his house. She entered the house and found her granddaughter Mst. Shaheen Bibi lying murdered. The aforesaid three persons were therefore, charged for committing the murder of the deceased. Motive for the offence as stated in F.I.R. Is that accused Qaizar Khan was to take away Mst. Shaheen Bibi forcibly for marriage but she had refused.
3. Learned counsel for the petitioner argued that the accusation is not supported by any ocular evidence; that there is no independent corroboration to the occurrence; that nothing incriminating has been recovered from possession of the accused/petitioner; that the accused/petitioner is complainant of F.I.R. No,20 of the same date and police station where sons of the complainant Ghulam Bibi are charged for committing the murder of Qaizar Khan who is accused in the present occurrence; and that the Investigating Officer has opined that both the deceased of F.I.Rs, Nos.20 and 21, namely, Mst. Shaheen Bibi and Qaizar Khan, have been done to death by Muhammad Bakhsh due to their inter se illicit relations. He, therefore, termed the case of the accused/petitioner to be of further enquiry entitling him to the concession of bail. In support of the contentions, reliance was placed on the case- law reported as Mazhar Mehmood v. The State 1997 SCM R 915, Manzoor and 4 others v. The State PLD 1972 SC 134, Muhammad Anwar v. The State NLR 1999 Criminal 704, Muhammad Saleem v. The State and another 2003 M LD 145 and Dost Muhammad v.
The State 2005 M LD 1085.
5(sic). The learned Deputy Advocate-General argued that the petitioner has been directly charged in the F.I.R. For taking active part in the commission of the offence and the motive was to take away forcibly Mst. Shaheen deceased to which she was not consenting. The occurrence has duly been witnessed by Mst. Farzana, daughter-in-law of the complainant, so it was prayed that the petitioner is not entitled to the concession of bail.
6. The complainant Ghulam Bibi present in person being poor is unable to engage private counsel and prayed for dismissal of this petition.
7. I have gone through the record and considered the valuable arguments of the learned counsel for the petitioner and learned Deputy Advocate-General for State.
8. Though the complainant has not seen the accused with her own eyes while firing at the deceased Mst. Shaheen Bibi, but she has witnessed the accused/petitioner and his co-accused fleeing away from the house duly armed. The accusation is also supported by the statement of P.W. Mst. Farzana Bibi recorded under section 161, Cr.P.C. Who has stated that she was present in the courtyard of her house at about 1200 hours when the three accused named above duly armed with weapons entered the house and she went inside the room whereafter firing was made in the courtyard and then all of them ran away from the house and when she came out from the room, Mt. Shaheen Bibi was lying murdered. The version of the prosecution further gets support from the medical examination of the deceased according to which the death of the deceased had occurred with fire-arms.
9. Tentative assessm ent of the above facts and circumstances of the case reasonably links the accused/petitioner with an offence which falls within the prohibitory clause of section 497, Cr.P.C.
Disentitling him to the concession of bail. The authorities cited and relied upon by the learned counsel for the petitioner are distinguishable from the facts and circumstances of the case in hand and have got no nexus with the facts of the present case.
10. Consequently, I find no merit in this bail application which is dismissed accordingly.