Fayyaz Ahmed Etc. vs The State
This matter comes before the Lahore High Court through a post-arrest bail petition filed by Fayyaz Ahmed and another in a case arising from FIR No. 265 of 2004 registered under Section 394 of the Pakistan Penal Code 1860, subsequently ordered for retrial under Section 17 of the Hadood Ordinance. The core legal question concerns whether the petitioners are entitled to post-arrest bail considering their prolonged incarceration and the order for retrial following the setting aside of their previous conviction. The court held that since the petitioners were not named in the initial FIR, were implicated only via a supplementary statement, have been in custody since May 2004, and face a retrial with no conclusion in sight, the bail petition ought to be accepted. The key principle laid down is that protracted detention coupled with an ordered retrial and delayed conclusion of trial constitutes sufficient ground for the grant of post-arrest bail.
- Are accused persons not named in the initial FIR but implicated via a supplementary statement entitled to post-arrest bail?
- Whether prolonged incarceration without a conclusion of trial in view of an ordered retrial warrants the grant of bail?
- Does a confession followed by a set-aside conviction and subsequent retrial bar the consideration for post-arrest bail?
- Section 394, Pakistan Penal Code 1860
JUDGMENT M.A. ZAFAR, J.~ Fayyaz Ahmad, Muhammad Arshad petitioners seek post-arrest bail in case FIR No. 265/2004 dated 30.4.2004 registered with Police Station Sato Katla District Lahore at the instance of Mst. Shazia Awan under Section 394, PPC in which in pursuance of order passed by the learned Addl: Sessions Judge, Lahore petitioners haye been directed to be tried under Section 17(6)/79 Hadood Ordinance. ,
2. As per FIR on 30.4.2004 at 2.00 p.m. Two accused persons trespassed the house of the complainant and they directed the complainant and others to hand over the jewellery and currency otherwise they would be killed. Complainant resisted whereupon she was given beating by the accused persons with daggers, kicks and fist blows, it is also alleged in the FIR that accused persons looted licensed revolver of the complainant and after committing robbery they escaped from the spot on motorcycle.
3. Learned counsel for the petitioners submits that petitioners are not named in the FIR and they were only involved in a "supplementary statement made by the complainant on the very day of the occurrence. He further submits that petitioners were arrested on 28.5.2004 and since then they are in custody. He also submits that chailan in this case was submitted before the learned Area Magistrate who framed the charge under Section 394, PPC and just to get rid from the rigors of the trial petitioners made confession before the learned Trial Court on 18.4.2007 and they were sentenced to four years R.I. He further submits that the complainant feeling aggrieved from the order passed by the learned Magistrate filed a revision petition before the learned Sessions Judge which was entrusted to the learned Addl: Sessions Judge, Lahore who set aside the conviction And sentence of the petitioners under Section 394, PPC and directed that they may retried under Section 17 of Hadood Ordinance. . ,
4. On the other band, learned D.P.G, has opposed the grant of bail on the ground that petitioners had already admitted their guilt and thus there are reasons to believe that petitioners are guilty of the offence charged with.
5. After hearing the learned counsel for the parties and perusing the record I find that petitioners are not named in the FIR. They were only involved by the complainant in her supplementary statement. Petitioners are in custody since 28.5.2004 and now in pursuance of the order passed by the learned Addl: Sessions Judge, Lahore for their retrial for offence under Section 17(6)/79. They have Jo be retried and the conclusion of the trial is not in sight.
6. For the foregoing reasons, this petition is allowed and the petitioners are admitted* to bail subject to their furnishing bail bonds in the sum of Rs. 50,000/- with two sureties in the like amount to the satisfaction of the learned Area Magistrate.