ARSALA KI-IAN and anothers vs MUHAMMAD FALAK SHER etc.
This matter concerns a post-arrest bail application filed by two petitioners, Arsala Khan and Said Nabi, who were charged under Sections 365-B and 496-A of the Pakistan Penal Code 1860 in connection with an FIR registered at Police Station Mathra, Peshawar. The core legal question was whether the petitioners were entitled to the concession of bail given the nature of the offence and the evidence available against each individual. The Court held that the case against Arsala Khan fell within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898, and since the evidence, including Call Detail Record (CDR) data, established a prima facie connection to the crime, his bail request was rejected. Conversely, the Court found that the case against Said Nabi, a juvenile, lacked sufficient evidence or CDR data linking him to the offence, rendering his guilt a matter of further inquiry. Consequently, the Court granted bail to Said Nabi while refusing it to Arsala Khan, emphasizing the necessity of prima facie evidence for bail in non-bailable offences.
- Is a petitioner entitled to bail when the offence charged falls within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898 and prima facie evidence connects them to the crime?
- Does the absence of specific evidence or CDR data linking a co-accused to the commission of a crime entitle them to bail on the grounds of further inquiry?
- Can bail be granted to a juvenile accused when there is no overt act attributed to them in the FIR?
- Section 365-B, Pakistan Penal Code 1860
- Section 496-A, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
' Petitioners Arsala Khan and Said Nabi seek their release on bail in case FIR No, 496, dated 17.5.2016, under Sections 365-B/496-A, PPC of Police Station Mathra, Peshawar.
2. I have heard the learned counsel for the parties and learned AAG and have also gone through the record with their valuable assistance.
3. Complainant being brother of the abductee Mst. Maryam Bibi has directly charged the petitioners for abduction of his married sister. As per record, both, the accused have been charged on the basis of satisfaction and the abductee has not yet been recovered. The sister of abductee charged Arsala Khan, having contacts with abductee. The CDR data collected by the investigating agency connects petitioner Arsala Khan with the commission of crime. The offence for which the A petitioners are charged undoubtedly attract the prohibitory clause of Section 497, Cr.P.C. Tentative assessm ent of the evidence establishes that petitioner Arsala Khan being prima facie connected with the 'commission of crime is not entitle to the concession of bail, in an offence attracting prohibitory clause of Section 497 Cr.P.C., hence his request for bail is rejected.
4. So far as case of Said Nabi petitioner is concerned, he is stated to be juvenile, aged about 16 years, being student of 10' class. There is neither any evidence against him except bald allegation nor CDR Data collected so far, connect Said Nabi with the commission of 1:5 crime nor any overt act has been attributed to him, establishing his liaison/abetment with the co-accused in kidnapping of the abductee Mst. Maryam Bibi. His case is one of further enquiry qua his guilt in the commission of crime. SO he is entitled to the concession of bail.
5. Thus for the above reasons, petitioner Arsala Khan .Has been refused while Said Nabi has been granted bail, vide my short order of even date, which is reproduced as under: "For reasons to be recorded later on, this bail petition is allowed to the extent of Said Nabi who is admitted to bail, in case FIR No, 496, dated 17.5.2016, under Sections 365-B/496-A, PPC of Police Station Mathra, Peshawar, provided he furnishes bail bonds in the sum of Rs, Two lac with two sureties, each in the like amount to the satisfaction of the Illaqa/Judicial Magistrate who shall ensure that the sureties are local, reliable and men of means. Whereas concession of bail is declined to Arsala Khan petitioner."