GHULAM RASHEED vs STATE and another
This matter concerns a post-arrest bail application filed by the petitioner, Ghulam Rasheed, who was charged in FIR No. 636/2007 under Sections 409, 419, 411, 420, 468, 471, and 477-A of the Pakistan Penal Code 1860, involving the fraudulent withdrawal of funds from a government bank account. The core legal question was whether the petitioner, who was not named in the FIR and whose implication rested solely on the statement of a co-accused recorded under Section 161 of the Code of Criminal Procedure 1898, was entitled to bail. The Peshawar High Court held that the petitioner was entitled to the concession of bail. The court reasoned that the statement of a co-accused cannot be used as substantive evidence against another accused to justify the refusal of bail. Consequently, the court determined that the petitioner's case fell within the ambit of further inquiry, thereby warranting the grant of bail. The key principle laid down is that the statement of a co-accused recorded during investigation is insufficient to deny bail when no specific role is attributed to the accused in the FIR.
- Can the statement of a co-accused recorded under Section 161 of the Code of Criminal Procedure 1898 be used as the sole basis for refusing bail to an accused?
- Does the non-nomination of an accused in the FIR entitle them to the concession of bail when the case against them requires further inquiry?
- Is an accused entitled to bail when the prosecution relies solely on the statement of a co-accused without assigning a specific role to the petitioner?
- Section 409, Pakistan Penal Code 1860
- Section 419, Pakistan Penal Code 1860
- Section 411, Pakistan Penal Code 1860
- Section 420, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 477-A, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
Having remained unsuccessful to get the concession of bail from the Courts of learned Judicial Magistrate and learned Additional Sessions Judge-III Bannu vide orders dated 27/11/2007 and 22/1/2008 respectively in case FIR No, 636 dated 12/8/2007 under Sections 409/419/411/420/468/471 and 477-A PPC, the accused/petitioner Ghulam Rasheed has now sought the indulgence of this Court through the application in hand for the same purpose.
2. According to the written report of Samiullah Khan, Tehsildar Bannu addressed to the SHO of Police Station City Bannu, Mughal Shah Office Qanoongo was handed over the official Cheque Book of Account No, 274-1 in the National Bank of Pakistan, Railway Road Bannu City being run by the Tehsildar Bannu, and he alongwith some private persons, namely, Iqbal Khan, Sher Dar Ali and Sanaullah Shah had fraudulently withdrawn an amount of Rs, 85,80,728/- from the said account through different cheques. Such report was incorporated into FIR ibid and consequently the aforesaid accused were arrested therein. During investigation, Sanaullah Shah accused disclosed that he with the active connivance of accused Zeeshan, Imdadullah, Ghulam. Rashid and Shahjeen had committed the offence. After his arrest, Ghulam Rasheed, accused/petitioner, applied for his release on bail to the learned lower Courts but his efforts proved abortive as mentioned above and hence this Court.
3. Learned counsel for the accused petitioner vehemently argued that the petitioner is not named in the FIR and his involvement in the case is merely on the statement of co-accused Sanaullah Shah recorded under Section 161 Cr.P.C. who has also not assigned any specific role to him. He argued that said statement of co-accused of the petitioner cannot be taken into account for refusing bail to him. He urged that some of co-accused of the petitioner have already been released on bail and on the principle of consistency, the petitioner is also entitled to the concession of bail.
4. In rebuttal, the learned Deputy Advocate General resisted the bail prayer of the petitioner on the ground that the principal accused Sanaullah Shah has named the accused/petitioner as his companion in committing the crime. He argued that out of the encashed and embezzled amount of Rs, 85,80,725/-, the accused/petitioner has received his share of Rs, 50,000/- which was recovered on his pointation in presence of witnesses. His argument was that the bail prayer of co- accused of the petitioner attributed identical role has been declined upto this Court and, therefore, he is not entitled to the discretionary relief of bail.
5. I have gone through the record carefully and considered the arguments of the learned counsel for the parties.
6. Admittedly, the petitioner is not nominated in the FIR by the complainant Samiullah Khan and he is only under arrest on the statement of Sanaullah Shah, co-accused, recorded under Section 161 Cr.P.C. It is by now a well settled principle of criminal law that statement of co-accused cannot be used against the other accused involved in the occurrence. No specific role has been assigned to him. At present, from the available facts and circumstances of the case, the case of the petitioner is arguable for the purposes of bail and falls within the ambit of further inquiry.
7. Resultantly, this application is accepted 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.
8. Above are the reasons for my short order of even date.