Khawaja MUHAMMAD YAHYA vs STATE
This matter arises from three criminal cases involving post-arrest bail applications filed by Khawaja Muhammad Yahya, who sought bail in multiple FIRs registered under sections related to extortion, assault on police, terrorism, and arms possession. The core legal question before the Sindh High Court was whether the applicant was entitled to post-arrest bail where the prosecution's case primarily rested on an inadmissible statement of a deceased co-accused, lacking identification parades or incriminating recoveries from the applicant's direct possession other than an unlicensed weapon. The court held that since the applicant was not nominated in the initial FIR, the co-accused's statement before the police was inadmissible, no identification parade was conducted, and no incriminating evidence regarding the extortion was recovered from the applicant, a case for further inquiry under Section 497(2) of the Code of Criminal Procedure 1898 was made out. The key principles laid down include that reliance on the statement of a deceased co-accused recorded before police does not sustain pre-trial detention without corroborative evidence, and that absence of incriminating recoveries alongside lack of identification warrants the grant of bail for further probe.
- Whether post-arrest bail can be granted when the applicant is not nominated in the FIR and the prosecution case relies solely on the statement of a deceased co-accused?
- Does the absence of an identification parade and failure to record a statement under Section 164 of the Code of Criminal Procedure 1898 make a case one for further inquiry under Section 497(2)?
- Is a statement made by an accused person to the police admissible in evidence against a co-accused?
- Section 385, Pakistan Penal Code 1860
- Section 386, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 7, Anti-Terrorism Act 1997
- Section 353, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 23(1)(a), Sindh Arms Act 2013
- Section 164, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
Shamsuddin Abbasi, J.--Applicant Khawaja Muhammad Yahya seeks bail in FIR No.258 of 2017 under Sections 385, 386 & 34, PPC read with Section 7 of Anti-T errorism Act, 1997 registered at Police Station Gulberg, Karachi, FIR No. 78 of 2017 under Section 353, 324 & 34, PPC read with Section 7 of Anti-T errorism Act, 1997 registered at Police Station Surjani Town, Karachi and FIR No. 80 of 2017 under Section 23(1)(a) of Sindh Arms Act, 2013 registered at Police Station Aziz Bhatti, Karachi. He is facing trial in the Court of learned Anti-T errorism Court No. XIII, Karachi, in Special Cases No.1892, 1893 and 1894 of 2017 and by an order dated 02.05.2018 the bail pleas of applicant were dismissed.
2. Since all three bail applications are offshoot of one incident, therefore, we deem it appropriate to decide the same together .
3. Facts relevant to these bail applications are that on 22.09.2017 complainant Mansoor Islam Siddiqui lodged an FIR at Police Station Gulberg, Karachi, stating therein that Aleeza is the daughter of his elder brother Riaz Lateef, who received phone calls on 18.09.2017, from Cell # 0332-2609334 and Cell No.0303-2770952 demanding Rs.25,000/- towards extortion money with a threat that in case of non-payment of amount, she or any .member of her family would be killed. She informed the incident to her uncle Mansoor Islam Siddiqui, who lodged FIR vide Crime No.258 of 2017. The investigation was entrusted firstly to Inspector Javed Hussain and then to Inspector Habib Ali of P.S. AVCC/CIA. On 25.09:2017 again call was made from Cell # 0311-3492438, wherein the caller- directed to bring extortion money at Abdullah Morr towards Katcha Road, Kaneez Fatima Society , Karachi. A team was constituted to conduct raid and arrest the culprits. SIP Ghulam Asghar Abbasi went to the pointed place in civil dress alongwith an envelope containing Rs.25,000/- where two persons came on one motorcyele Honda 125 and received the envelope. Meanwhile, the police party encircled the culprits, who on seeing the police party started firing upon them with intention to kill. Police also returned the fires in self-defence. During encounter one culprit received fires-arm injury and fell-down from the motorcycle, who was apprehended on the spot whereas the other one managed to escape from the scene. The injured culprit disclosed his name as Kamran son of Jamal Ahmed and also the name of his companion, who made his escape good, as Yahya. During personal search, police recovered one .30 bore pistol without number loaded with magazine containing one bullet and la bullet loaded in chamber , one mobile phone G-5 containing SIM # 0311-3492435, cash of Rs.300/-, envelope containing extortion money-from injured accused, who succumbed to his injuries and died soon after the incident arid second FIR vide Crime No.78 of 2017 was registered at P.S Surjani Town. Thereafter , on 02.10.2017 police received spy information that absconding accused Yahya is present at Treasury Office near Major Aziz Bhatti Park, Karachi. On receipt of such information the police party , headed by Inspector Habib Ali, proceeded to the pointed place and arrested accused Yahya. On his personal search police recovered one .30 bore pistol loadded with magazine containing five live bullets, one mobile phone Nokia 101 and cash of Rs. 400/-. On demand, the accused failed to produce a license, or the recovered pistol. Police arrested him on the spot under a mashirnar na and then brought him at P.S. where he confessed the commission of crime and third FIR vide Crime No, 80 of 2017 was registered Aziz Bhatti, Karachi.
4. After usual investigation, the police submitted challans before the Court of competent jurisdiction.
5. It is inter-alia, contended on behalf of applicant that police has not collected any evidence against the applicant to show his involvement in the commission of crime except the statement of co accused, which is not admissible in the eyes, of law. It is next submitted that neither any identification parade has been before a Magistrate nor the applicant was produced before a Magistrate for recording his statement under Sections 164, Cr.P.C. It is also submitted that at the most a case of recovery of unlicensed arm 'is constituted against the applicant, which too was recovered in presence of police mashirs and no-independent person was associated to witness the recovery; that the FIR of the incident as been lodged on 22.09.2017 whereas the applicant has been shown arrested on 02.10.2017 and since then he is in custody . Lastly , he submitted that the case of the applicant requires further inquiry and pending trial of the cases, he may be enlarged on bail.
6. On the other hand, the learned DPG has, opposed the bail pleas on the ground that 9 MM pistol recovered from the possession of applicant was sent to ballistic expert and report is positive. He however , concedes that the applicant has been implicated on the statement of co-accused, who sustained fire-arm injuries during police encounter and died soon after the incident. He further admitted that nothing incriminating has been recovered from the possession of applicant except a pistol and all recoveries i.e. mobile phone SIM, extortion money and crime weapon were made from co-accused.
7. Heard arguments of both the side and perused the entire material available before us.
8. Admittedly the applicant is not nominated in the FIR lodged by Mansoor Islam Siddiqui and the case of the prosecution hinges, only on the stateme nt of co-accused Kamran, who sustained fire-arm injuries during police, encounter and died soon after the incident. Even otherwise statement of an accused before police is not admissible in the eyes of law. It is also undisputed fact that no identification parade has been held before any Magistrate without furnishing any plausible explanat ion so much so the applicant has not been produced before a Magistrate for recording his 'statement under Section 164, Cr.P.C; Nothing incriminating has been recovered from the possession of applicant except an unlicensed weapon and the recoveries of mobile phone SIM, extortion money and crime weapon have been shown recovered from the possession of co-accused Kamran., It is also to be noted that the FIR; has been lodged On 22.09.2017 and applicant has been shown arrested on 02.10.2017 so much so the challans halve been submitted and the applicant is no more required for further investigation. In the mentioned circumstances, we are of the considered view that a case of further probe within the meaning of sub-section (2) of Section 497 Cr.P.C. is called for. The bail applications are, therefore, granted. The applicant shall be released on bail subject to his furnishing surety in the sum of Rs.200,000/- (Rupees two hundred thousand only) in each case and P .R. Bonds in the like amount to the satisfaction of the trial Court.
9. Needless to mention here that the observations made herein above are of tentative assessment and the trial Court shall not be influenced by the same, while deciding the case(s) of the applicant on merits.