REHMAT ULLAH vs THE STATE
This criminal petition was filed by Rehmat Ullah seeking post-arrest bail in case F.I.R. No. 763 registered at Police Station Wah Cantonment, District Rawalpindi under section 395 of the Pakistan Penal Code. The core legal question was whether the petitioner was entitled to post-arrest bail where his name was not mentioned in the F.I.R., his implication was based on a co-accused's disclosure statement, no test identification parade was conducted, and no recovery was effected from him. The Lahore High Court held that the case against the petitioner called for further inquiry into his guilt under subsection (2) of section 497 of the Code of Criminal Procedure, as the evidence against him was virtually inadmissible at this stage and his physical custody was no longer required. The court accordingly allowed the bail petition and also expressed grave concern over the perfunctory manner in which the Additional Sessions Judge handled the initial bail application.
- Whether an accused whose name is not in the F.I.R. and whose implication is based on a co-accused's disclosure is entitled to post-arrest bail?
- Does the lack of a test identification parade and absence of recovery warrant further inquiry into the guilt of an accused under subsection (2) of section 497, Cr.P.C.?
- Can bail be granted when the investigation has been finalized, a challan submitted, and the physical custody of the accused is no longer required?
- Section 395, Pakistan Penal Code
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' ASIF SAEED KHAN KHOSA, J.--Through this petition Rehmat Ullah petitioner has sought post-arrest bail in case F.I.R. No,763 registered at Police Station Wah Cantonment, District Rawalpindi on 3-12- 2008 in respect of an offence under section 395, P.P.C.
2. The occurrence in this case had taken place in the middle of a night and the culprits perpetrating the said offence had remained unknown and unidentified at the spot. The petitioner's name had not figured in the F.I.R. In any capacity whatsoever and his same had surfaced in this case for the first time through a disclosure allegedly made by Asif co-accused before the police during his custody in connection with some other criminal case. Such implication of the A petitioner in a case of this nature was surely twice removed from admissibility. It is not disputed that no test identification parade has been held in this case so as to positively incriminate the petitioner.
Admittedly nothing had been recovered from the petitioner's possession during the investigation.
The investigation of this case has already been finalized and a challan has been submitted and, thus, physical custody of the petitioner is not required at this stage for the purposes of investigation.
3. For what has been discussed above the case against the petitioner calls for further inquiry into his guilt within the purview of subsection (2) of section 497, Cr.P.C. This petition is, therefore, allowed A and the petitioner is admitted to bail subject furnishing bail bond in the sum of Rs,50,000 (Rupees fifty thousand only) with two sureties each in the like amount to the satisfaction of the learned Trial Court.
4. Before parting with this order I cannot help observing that I have been shocked to see how the petitioner's application for bail had been handled by the learned Additional Sessions Judge, Taxila, District Rawalpindi (Mr. Sana Ullah Malik). It has already been observed above that the case against the petitioner is practically one of no admissible evidence so far but unfortunately the learned Additional Sessions Judge, Taxila had observed in his order dated 21-5-2009 that "there is incriminating material against the petitioner on file which is sufficient to prove the involvement of petitioner in this case." It is thus, obvious that the learned Additional Sessions Judge, Taxila had decided the petitioner's application for bail without properly attended to the record of this case.
The learned Additional Sessions Judge, Taxila is warned to be careful in this regard in future, particularly in matters involving liberty of a citizen. The office is directed to send a copy of this order to Mr. Sana Ullah Malik, Additional Sessions Judge, Taxila District Rawalpindi for his information.