SAMIULLAH and another vs STATE
This matter arises from a criminal bail petition filed by Samiullah and another, seeking post-arrest bail after it was refused by the Anti-Terrorism Court D.I. Khan. The petitioners were charged under Sections 120-B and 121 of the Pakistan Penal Code 1860, and Section 7 of the Anti-Terrorism Act 1997, in FIR No. 135 registered at Police Station Mullazai, District Tank, for allegedly inciting and preparing minor girls for suicidal attacks in a madrissa. The core legal question was whether reasonable grounds existed to connect the accused with the alleged offences to warrant withholding bail. The Peshawar High Court held that the statements of the recovered women recorded under Section 164 of the Code of Criminal Procedure 1898 showed they acted on their own will, and no incriminating articles were recovered from the petitioners. The court concluded that the case fell within the ambit of further inquiry under subsection (2) of Section 497 of the Code of Criminal Procedure 1898. Consequently, the bail application was allowed, and the petitioners were admitted to bail upon furnishing suitable surety bonds.
- Whether the absence of incriminating recoveries from the accused brings their case within the scope of further inquiry for the grant of bail?
- Does a statement recorded under Section 164 of the Code of Criminal Procedure 1898 exculpating the accused justify granting post-arrest bail?
- When does a criminal case fall under subsection (2) of Section 497 of the Code of Criminal Procedure 1898 for tentative assessment at the bail stage?
- Section 120-B, Pakistan Penal Code 1860
- Section 121, Pakistan Penal Code 1860
- Section 7, Anti-Terrorism Act 1997
- Section 156(3), Code of Criminal Procedure 1898
- Section 164, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
Samiullah Khan and Saifullah Jan, accused/petitioners, charged in case FIR No, 135 dated 15/9/2008 of Police Station Mullazai, Tehsil and District Tank, registered under Sections 120-B/121 PPC and Section 7 ATA, having been refused the concession of bail by the learned Judge Anti Terrorism Court D.I.Khan vide judgment dated 8/10/2008, has filed the application in.hand for the same relief.
2. According to the FIR lodged by Said Nawaz Khan SHO of Police Station Mullazai, the accused/petitioners were indulged in inciting and preparing innocent minor girls for suicidal attacks in the name of `Jehad' in a "Dinni Madrissa", wherefrom two ladies named Mst. Nazmeena and Mst. Sadia Bibi were recovered during an inquiry under Section 156(3) Cr.P.C.
3. Mr. Gohar Zaman Kundi Advocate, learned counsel appearing for the accused/petitioners contended that the petitioners are innocent and have been falsely roped in the case. It was also argued that no incriminating CDs or cassettes have been recovered from them. So no reasonable grounds exists to connect them with the commission of the offence and they are entitled to be released on bail.
4. Mr. Sanaullah Khan Shamim Gandapur, learned Deputy Advocate General appearing for the State vehemently opposed the bail concession to the petitioners on the ground that the petitioners have been directly charged in the FIR, which was lodged with all reasonable promptitude and materials exist on the record to connect them with the commission of the offence.
5. I have gone through the entire record of the case and mutely considered the arguments advanced at, the bar.
6. Perusal of the available record reveals that the statements of the ladies have been recorded under Section 164 Cr.P.C. wherein they have admitted that they were themselves interested in Jehad and on their own will they used the cassettes/CDs. for Jehad and have gone to the house of Khalifa on their own sweet will, without any inducement or force by the petitioners.
7. Perusal of the record further reveals that so far the police had failed to bring on record such materials so as to reasonably connect the accused/petitioners with the commission of the offence.
Prima facie, there is an inordinate delay in lodging the report and no incriminating article has been recovered from either of the two accused/petitioners so as to disentitle them to the concession of bail. Tentative assessm ent of the materials so far brought on record brings their case within the ambit of further inquiry, entitling them to the concession of bail.
8. Resultantly, this application is allowed and the accused/petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs, three lacs with two sureties each in the like amount to the satisfaction of the Raga/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.