ABDUL HAKEEM Versus State
This matter concerns a post-arrest bail application filed by the applicant, who was implicated in an F.I.R. regarding an abduction incident. The core legal question was whether the applicant was entitled to bail given the significant, unexplained delay in recording the statement of the alleged abductee under Section 161, Code of Criminal Procedure 1898, which served as the primary evidence connecting the applicant to the crime. The Court held that while the applicant was not named in the initial F.I.R., the subsequent implication by the abductee was the sole evidence against him. However, because the abductee was recovered on November 16, 2010, but did not provide a statement until November 26, 2010, without offering any plausible explanation for this ten-day delay, the credibility of the evidence was rendered suspect. Consequently, the Court found the case to be one of further inquiry and granted bail to the applicant. The key principle laid down is that an unexplained, significant delay in recording a witness statement under Section 161, Code of Criminal Procedure 1898, casts serious doubt on the prosecution's case, warranting the grant of bail.
- Does an unexplained delay in recording a statement under Section 161, Code of Criminal Procedure 1898, entitle an accused to bail?
- Is the failure to name an accused in the initial F.I.R. fatal to the prosecution's case when the accused is later named by the victim?
- Can a bail application be granted when the primary evidence against the accused is a delayed statement of the alleged victim?
- Section 161, Code of Criminal Procedure 1898
- Section 164, Code of Criminal Procedure 1898
- Section 365-A, Pakistan Penal Code 1860
- Section 302, Pakistan Penal Code 1860
ORDER
1. SHAHID ANWAR BAJWA, J.--- F.I.R. No. 129 of 2010 was recorded at Police Station, Sarhad on 16-11-2010 at 5-00 p.m. for an incident alleged to have taken place at 4-30 a.m. of the previous day. Complainant stated that he along with Police party went on patrolling duty and while patrolling, they received information that a dacoit along with his gang, due to Police pressure, was shifting abductee Mohammad Sachal from one place to another. Police party rushed at the pointed place and saw six persons with K.Ks. Hands of one person were tied from back. Police challenged them. One person pushed the person with tied hands and then the dacoits went towards northern side and started firing on Police party. Fire was returned. This continued for 30 minutes. Accused, taking advantage of darkness, managed to escape. A Head Constable stated that he identified four dacoits and two were not identified. Abductee was released, who narrated story of his abduction.
2. Learned counsel for the applicant submitted that name of the applicant is not mentioned in F.I.R. He submitted that though the abductee was released on 16-11-2010, his statement under section 161, Cr.P.C. was recorded on 26-11-2010 and his statement under section 164, Cr.P.C. was recorded on 29-11-2010 and it was, for the first time, on 26-11-2010, that present applicant was named in the statement under section 161, Cr.P.C. He submitted that present applicant has been named falsely after consultation. He further submitted that in the challan submitted, section 365-A, P.P.C. has been excluded. He submitted that there is no evidence available with Police regarding abduction by present applicant or even presence of the present applicant with the gang of dacoits and, therefore, case is of further inquiry. Learned counsel relied upon Muhammad Anwar and 4 others v. The State 2011 PCr.LJ 711, Mohammad Akhtar and another v. The State 2010 PCr.LJ 373, Abid Ali alias Ali v. The State 2011 SCMR 161, Muhammad Khan v. Moula Bux and another 1998 SCMR 570, Ehsan Elahi v. The State 2008 PCr.LJ 1708 and Gulom Khan v. The State and others 2002 MLD 739.
3. Learned A.P.-G. submitted that the applicant has been named by the abductee in statement under section 164, Cr.P.C. as well as statement under section 161, Cr.P.C. He submitted that delay in recording of statement under section 161, Cr.P.C. is not material in the circumstances. He relied upon Faiz Muhammad v. Zaibul Nisa and another, 2009 MLD 518. Learned counsel for abductee submitted that alleged abductee has clearly implicated the present applicant. He submitted that kidnapping for ransom is offence against society and strictest possible view should be taken.
4. I have considered the submissions made by the learned counsel and have also gone through the record.
5. The only piece of evidence against the applicant is the statement under section 161, Cr.P.C. followed by statement under section 164, Cr.P.C. of the alleged abductee. The alleged abductee was got released as per F.I.R. on 16-11-2010, his statement under section 161, Cr.P.C. was recorded on 26-11-2010 and, thereafter, his statement under section 164, Cr.P.C. was recorded on 29-11-2010.
6. Learned A.P.-G. relied upon Faiz Mahammad's case (supra) Faiz Mohammad was accused for offence under section 302, P.P.C. etc. Complainant stated that her brother came to visit her and after staying with her for half an hour and narrating existence of bad blood regarding allegation of illicit relationship, he left in the morning. Complainant was informed that dead body of his brother was found on the road. In the F.I.R., she alleged that one Imdadullah along with unknown persons had murdered her brother. Applicant Faiz Mohammad was named in further statement of the complainant. It was observed that investigation had brought material, which prima facie connected the applicant with the commission of offence. It is, therefore, this existence of material, which persuaded the Court to the conclusion that bail application was dismissed. In Mohamamd's case (supra) statement under section 161, Cr.P.C. was recorded after 15 days and the Supreme Court held that credibility of the evidence would be looked at with serious suspicion after his statement under section 161, Cr.P.C. is recorded with delay without offering any plausible explanation. In the present case, statement was recorded after 10 days and there is no plausible explanation as to why the abductee after having been recovered on 16-11-2010 did not submit himself for recording statement under section 161, Cr.P.C. for ten long days.
7. Contention of the learned counsel that the applicant was not named in the F.I.R. is not at all material because F.I.R. was registered on complaint by a Police Constable and not on complaint by the alleged abductee. Name of the present applicant is disclosed by the alleged abductee. However, since there is a delay in recording statement under section 161, Cr.P.C. and no plausible explanation has been submitted for such delay, doubt crops up around implication of the present applicant.
8. Consequently, this bail application is allowed and the applicant is ordered to be admitted to bail subject to his executing P.R bond in the sum of Rs.300,000 (Three hundred thousand) with one solvent surety in the like amount to the satisfaction of the trial Court.
9. M.W.A./A-13/K Bail granted.