ISHFAQ vs STATE
This criminal petition concerns an application for post-arrest bail filed by the petitioner, Ishfaq, who was charged under Sections 400 and 401 of the Pakistan Penal Code 1860, and Section 512 of the Code of Criminal Procedure 1898, regarding allegations of dacoity and theft. The core legal question was whether the petitioner remained entitled to bail despite his previous abscondence from trial proceedings and the fact that his co-accused had already been acquitted. The court held that the petitioner was entitled to bail. The ratio of the decision rests on the finding that the prosecution failed to record statements from any affected individuals during the investigation, and the state could not produce evidence of the petitioner's prior criminal history. Furthermore, the court established the principle that abscondence does not automatically disqualify an accused from bail if they are otherwise entitled to it on merits, and that where a co-accused has been acquitted on the same evidence, keeping the petitioner incarcerated serves no useful purpose for the prosecution.
- Does the abscondence of an accused automatically disentitle them to the concession of bail?
- Is an accused entitled to bail when a co-accused charged on the same evidence has been acquitted?
- Does the lack of statements from affected individuals during investigation impact the merits of a bail application?
- Section 400, Pakistan Penal Code 1860
- Section 401, Pakistan Penal Code 1860
- Section 512, Code of Criminal Procedure 1898
Petitioner Ishfaq, through this petition, seeks bail in case FIR No, 489 dated 10.7.2010 registered for offence u/S. 400/401 PPC, 512 Cr.P.C. at Police Station Choora District Mardan.
2. The complainant Niaz Hussain, SI Chowki Dubai while on gusht present at village Palo Dheri alleged that the accused Ishfaq son of Hawas Khan (the present petitioner) alongwith co-accused belong to a gang involved in dacoity and theft and taking Ghuda Tax by force from the people but no one from the locality come forward to bring the same into the notice of law enforcing agency.
The complainant also alleged that he himself noticed the accused while taking money from the people by force, thus, a case against them under the above section of law was registered.
3. Learned counsel for petitioner contended that the petitioner has been falsely implicated in the instant case with ulterior motive. Further contended that except the sole statement of the complainant, who is a police official, there is no other evidence whatsoever on record to connect the petitioner with the alleged crime. He was of the view that the prosecution story is false and fabricated one having no supporting evidence. He also pointed out that initially the petitioner was granted bail by learned Additional Sessions Judge-V, Mardan but at the commencement of the trial he did not attend the Court due to some circumstantial compulsion, thus, proceedings against him. u/S. 512 Cr.P.C. were initiated. He further submitted that since co-accused has been acquitted by the learned trial Court on 17.12.2011, therefore, on the same charge and evidence the prosecution would not advance the case against the petitioner. In support of his contentions, he relied on a case reported through 1998 P.Cr.L.J. 1450.
4. Learned State counsel while opposing this petition contended that once the petitioner was granted bail and he misused the same, then, subsequently he is not entitled to the same concession. He was of the view that trial has commenced and when the petitioner absented himself from the trial and remained fugitive from law for about two years and joined the proceedings after the acquittal of co-accused, thus, in this background the accused is not entitled to the concession of bail.
Arguments heard, Record perused.
5. The allegation against the petitioner is that he being member of a Gang of dacoits and thieves, who used to take money from the people by force but strange enough that during the investigation the I.O. did not record the statement of any affectee in support of the alleged crime. When the learned State counsel was confronted that as to whether there is any criminal istory or previous conviction of the petitioner in such like ses, his answer was in the big "NO".
6. Keeping in view the aforementioned fact remains that the petitioner was deemed fit to be entitled to the concession of bail earlier but having misused the same does not alter/change the merits of the case. Moreso, abscondence would not create any hurdle in the way of accused/petitioner, if otherwise he is entitled to the concession of bail. A Moreover, the co-accused Abdur Rehman has been acquitted by learned Additional Sessions Judge-V, Mardan on 17.12.2011, therefore, being similarly charged and on the same set of evidence to be produced against him at the trial, hence keeping him behind the bars for indefinite period would be of no useful purpose for the prosecution, therefore, on the available record the petitioner has made out a case for bail.
For the aforestated reasons, this petition is allowed and the petitioner is granted bail in the sum of Rs, 300,000/- with two sureties each in the like amount to the satisfaction of learned trial Court. The local status and financial strength of the sureties shall be ensured before admission of bail bonds.