FAZAL MABOOD vs THE STATE through S.H.O., Police Station Ghalegay
This matter arises from criminal miscellaneous petitions seeking post-arrest bail in a case registered under various sections of the Pakistan Penal Code, the Explosive Substances Act, 1908, the Offences Against Property (Enforcement of Hadood) Ordinance, 1979, and the Anti-Terrorism Act, 1997, relating to an attack on a police check post. The core legal question is whether the petitioners are entitled to bail when they are not named in the F.I.R., no incriminating recoveries directly connect them to the crime, and a belated eyewitness statement under section 164 of the Code of Criminal Procedure, 1898 appears identically across multiple distinct F.I.R. files. The Peshawar High Court held that the petitioners' case called for further inquiry, making it arguable for bail, and noted that the law cannot be stretched in favour of the prosecution even for heinous offences. The court laid down the principle that the mere gravity of an offence or charges under heinous sections does not disqualify an accused from bail if the prosecution's tentative case suffers from lack of direct or reliable connecting evidence, and conditional bail may be granted.
- Are accused persons entitled to post-arrest bail when they are not nominated in the F.I.R. and no incriminating recoveries are made from them?
- Does the commission of a heinous offence automatically disqualify an accused from the concession of bail?
- Can a statement recorded under section 164 of the Code of Criminal Procedure, 1898 that appears identical across multiple F.I.R.s weaken the prosecution's case for bail purposes?
- Section 353, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 120, Pakistan Penal Code 1860
- Section 124-A, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 365, Pakistan Penal Code 1860
- Section 427, Pakistan Penal Code 1860
- Section 3, Explosive Substances Act 1908
- Section 4, Explosive Substances Act 1908
- Section 17, Offences Against Property (Enforcement of Hadood) Ordinance 1979
- Section 7, Anti-Terrorism Act 1997
- Section 164, Code of Criminal Procedure 1898
MAZHAR ALAM KHAN MIANKHEL, J.---The petitioner in Criminal Miscellaneous No. 72 of 2011 and the petitioners in the connected Criminal Miscellaneous No. 81 of 2011, seek their release on bail in case F.I.R. No. 22 dated 4-2-2009 Police Station Ghaligay, Swat registered under sections 353/324/120/124-A,148/149/365/427, P.P.C. Read with sections 3/4 of the Explosive Substances Act, 1908 read with section 17(2)(3)(4) of the Offences Against Property (Enforcement of Hadood)
Ordinance, 1979 and section 7 of the Anti-Terrorism Act, 1997. As both the petitions arise out of one and the same F.I.R., therefore the same are disposed of through this common judgment in Criminal Miscellaneous No.72 of 2011.
2. The learned counsel for the petitioners argued that the petitioners are innocent and have falsely been charged in the case. They are neither named in the F.I.R. Nor any ocular or other circumstantial evidence is available on file to reasonably connect them with the commission of offence, hence they are entitled to be released on bail.
3. The learned A.A.-G. On the other hand opposed the bail applications and submitted that the petitioners are members of a banned organization who, in between the night of 3rd and 4th February, 2009, had encircled the police personnel as well as an F.C. Platoon present in Police Choki Shamozai, made firing, overpowered them, took away their arms etc., and destroyed the police post with explosive substance. One Painda Muhammad, on 19-10-2009, recorded his statement under section 164, Cr.P.C. Wherein he, while posing himself to be an eyewitness of the occurrence, has named the petitioners etc. Responsible for the incident in question. The petitioners are, therefore, prima facie. Connected with the commission of offence and not entitled to the concession of bail.
4. Learned counsel for the petitioner and the learned DAG for the State were heard and record of the case was perused.
5. Perusal of the record Would reveal that none of the petitioners are nominated as accused in the F.I.R. Similarly, none of the items, which were allegedly stolen/snatched from the personnel of the law-enforcing agencies, as mentioned in the F.I.R., have been recovered from them. Although certain recovery memos are available on file to show that some articles of the destroyed check post, such as bricks and iron etc. Were recovered from the houses of certain persons, but the same too, at this stage, does not connect the petitioners with the crime, as none of those persons have named the petitioners for the sale of alleged items to them. The only piece of evidence against Fazal Mabood, petitioner, that about 19 mounds of iron, purportedly to be the stolen iron of the destroyed building was recovered from his house, would also not sufficiently connect him with the commission of offence, being a matter of further probe, that in fact the iron in question was that of the police choki. Similarly, though one Painda Muhammad in his statement under section 164, Cr.P.C. Has named the petitioners for the offence but perusal of the record would reveal that some other cases of similar nature were also registered against the petitioners through different F.I.Rs., and photocopy of the statement of Painda Muhammad has been placed on the files of all those F.I.Rs. In these circumstances, the petitioners' ease becomes arguable for the purpose of bail. The petitioners, no doubt, are charged for a heinous offence, but it would not disqualify them for the relief of bail, if otherwise their case is found fit for grant of bail. The august Supreme Court of Pakistan in the case of Abid All alias Ali v. The State (2011 SCM R 161) has again reaffirmed its dictum earlier laid down in the case of Amir v. The State (PLD 1972 SC 277) that even for the purpose of bail, law is not to be stretched in favour of the prosecution. In the circumstances stated above, this Court is inclined to extend the concession of bail to the petitioners but with certain conditions.
So, without prejudiced to the merits of the case, these petitions are allowed and the petitioners are directed to be released on bail provided they furnish bail bonds each in the sum of Rs.5,00,000 (Rs.
Five lacs) with two sureties each in the like amount to the satisfaction of Illaqa/Judicial/Duty Magistrate. The sureties shall be reliable and men of means. They shall also undertake in the bail bonds that they will remain peaceful for the rest of life and will not join any group of militants and shall further undertake that they will not leave their District without informing the Police Station concerned and shall also disclose the place of visit and duration of stay, in case they cross to another District. This condition shall remain in force for one year, whereafter it shall become ineffective if the petitioners are found of good manner and characters during this period.