SAMIULLAH and another vs THE STATE
This criminal misc. application was filed by Samiullah and another seeking post-arrest bail after their bail plea was dismissed 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 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 commission of 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 free will, and no incriminating material or CDs were recovered from the petitioners. Consequently, the court found the case to be one of further inquiry under section 497(2) of the Code of Criminal Procedure 1898 and admitted the petitioners to bail. The key principle laid down is that where a tentative assessment of the record reveals no reasonable grounds connecting the accused to the crime and statements of alleged victims negate coercion, the case falls within the scope of further inquiry, justifying the grant of bail.
- Whether the absence of incriminating recovery and exculpatory statements of victims under section 164 Cr.P.C. brings a case within the scope of further inquiry for the grant of bail?
- Can accused persons charged under anti-terrorism laws be admitted to bail when tentative assessment fails to connect them prima facie to the offence?
- Does the lack of prompt recovery of incriminating articles entitle the accused to the concession of post-arrest bail?
- 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
' MUHAMMAD ALAM KHAN, J.---Samiullah Khan and Saifullah Jan, accused/petitioners, charged in case F.I.R. No,135, dated 15-9-2008 of Police Station Mullazai, Tehsil and District Tank, registered under sections 120-B/121, P.P.C. 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 F.I.R lodged by Said Nawaz Khan S.H.O. Of Police Station Mullazai, the accused/petitioners were indulged in inciting and preparing innocent minor girls for suicidal attacks in the name of A `Jehad' in a "Dinni Madrissa", wherefrom two ladies namely 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 exist 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 F.I.R., 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 minutely 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 B article has been recovered from either of the two accused/petitioners so as to disentitle them to the concession of bail. Tentative assessment 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 Ilaqa/Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means.
' Above are reasons for my short order of even date.