TAJ MUHAMMAD Versus THE STATE
The petitioner, namely, Taj Muhammad an Afghan refugee stands involved alongwith others, in case F.I.R. No. 174 dated 31‑3‑2003 registered under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 412, P.P.C. and sections 6/7 of the Anti‑Terrorism Act, 1997, at the instance of Haji Aslam Khan, complainant in this case.
2. Case of the prosecution in brief is that on the night of occurrence i.e. 31‑3‑2003, complainant and other members of his family were asleep in separate rooms and Asad Ali, driver of the complainant, was asleep in the 'Hujra' of the complainant's house in Mohmand Abad, Peshawar when at about 2‑15 a.m. 10/12 unknown persons duly armed entered into the house, confined the inmates of the house and driver Asad Ali, in a room and snatched cash amount of Rs.18,10,000, gold ornaments weighing 129 tolas, four Rado wrist watches, a mobile telephone and a Repeater at gun‑point.
3. The matter was reported to the police on the following morning by the complainant in his 'Hujra' and the report was recorded by Sub‑Inspector Noor Muhammad Khan, Incharge Police Post Paharipura, attached with Police Station Chamkani, who happened to be on a rountine 'Gasht' of the area.
4. During investigation of the case, the petitioner and some of his accomplices were arrested on 17‑4‑2003. An identification parade was held on 26‑4‑2003 wherein the petitioner and his accomplices were picked up and recognized by the complainant, his brother Ghulam Qadir, son Parvez Khan and Driver Asad Ali. The magisterial statement of the mentioned witnesses were got recorded on 28‑4‑2003 in which they fully implicated the petitioner and others for the offence in question.
5. After arrest the petitioner submitted an application for grant of bail in the Court of Special Judge, Anti‑Terrorism Court, Peshawar, which was rejected vide order dated 21‑8‑2003. Hence the present petition.
6. Mr. Hussain Ali, Advocate, learned counsel for the petitioner, in support of the bail application contended that there is no evidence whatsoever to connect the petitioner with the guilt; that no recovery has been effected from the petitioner and that the petitioner has been involved in the case on mere suspicion. He also questioned the evidentiary value of the identification parade held on 26‑4‑2003 and attempted to argue that the proceedings of the identification parade where the petitioner was picked up without describing the role played by him in the crime, suffer from illegality and infirmity rendering it completely unreliable. To substantiate the pleas, he placed reliance on Abdul Karim and another appellants v. The State respondent (1996 PCr.LJ 503 Karachi), Zameen Gul appellant v. The State respondent (1996 PCr.LJ 662 (FSC), Ahmad Sher and another appellants v. The State respondent (PLD 1995 FSC 20) and Tariq Aziz and another applicants v. State respondent (2001 YLR 1425).
7. Mr. Khalid Tanveer Rohaila, Advocate appearing on behalf of the State, assisted by Mr. Abdul Latif Afridi, Advocate, for the complainant, bitterly opposed the application and submitted that prosecution is in possession of sufficient material to connect the petitioner with the crime and having regard to the facts and circumstances of the case, learned trial Judge had valid reasons to reject the application of the petitioner for his release on bail. To augment the contentions he placed reliance on Tanveer Ahmad applicant v. The State respondent (1999 PCr.LJ 590 Karachi).
8. I have heard at length the arguments and submissions of learned counsel for the parties in the light of the material on file.
9. It needs no reiteration that before releasing the accused on bail, the Court is required to apply its mind keeping in view the provisions contained in subsection (1) of section 497 and section 497, Cr.P.C. in its totality and the sine qua non, for releasing the accused on bail is that the Court should come to the conclusion that there are no reasonable grounds to believe that he has committed a non‑bailable offence as provided in subsections (1) and (2) of section 497, Cr.P.C. or to prevent the abuse of the process of Court or to, do justice, keeping in view the particular facts of each case. The bail in the cases of commission of non‑bailable offences and particularly falling in the prohibitory clause in subsection (1) of section 497, Cr.P.C. is not to be granted as a matter of course, with a simple sentence that it is a case or further inquiry and without keeping in view the entire provisions of section 497, Cr.P.C.
10. No doubt it is true that 10/12 unknown persons duly armed with Lethal weapons are designed in the F.I.R. for the commission of crime and depriving the complainant and other inmates of the house, cash amount, gold ornaments and others house‑hold articles and no recovery has been effected from possession of the petitioner but it is equally true that the petitioner alongwith others has been correctly picked up and identified as one of the culprits, during the identification parade held on 26‑4‑2003 in Central Jail, Peshawar. The identifiers have fully supported the prosecution version and charged the petitioner and his accomplices for taking part in the robbery committed by them on the night of occurrence. The petitioner is stated to be a ring leader of a gang of dacoits involved in many cases of similar nature. The criminal act as rightly urged is designed to create a sense of fear or insecurity in the minds of the general public disturbing even tempo of life and tranquility of society. The. Courts cannot remain oblivious of this fact. Moreover complete challan has been submitted in Court and conclusion of trial is not very far‑off. The Authorities referred to by learned counsel for the petitioner are aptly not applicable to this case for its distinguishable facts and circumstances and are of no help to the petitioner. So, the petitioner on the basis of the material available on the record is prima facie connected with the alleged offence. In these circumstances I do not find him entitled to bail at this stage. The application fails which is hereby dismissed. Bail refused.
11. Needless to add here that any observation made in the present order shall not prejudice the learned trial Court and treated as tentative in nature.
N.H.Q./987/P Bail refused.