AFZAL KHAN Versus THE STATE

TALAAT QAYUM QURESHI, J .--- Having been involved in case registered vide F.I.R. No. 16, dated 20-12-2000 under sections 365-A/148/149, P.P.C., at Police Station Kalu Khan, the accused petitioner Afzal Khan applied for his release on bail in the Court of learned Judicial Magistrate. His application was allowed vide order, dated 2-2-2001. Umar Farooq, complainant, being aggrieved of the said order, moved the Court of learned Sessions Judge, Swabi for cancellation of bail granted to accused Afzal Khan. His application was allowed and bail granted to the petitioner Afzal Khan was cancelled/recalled vide order, dated 11-4-2001.

2. Ashfaq accused-petitioner after his arrest moved the Court of learned Judicial Magistrate for his release on bail. His application was dismissed vide order, dated 10-3-2001. He then moved the Court of learned Sessions Judge, Swabi and his application met the same fate when the same was dismissed on 11-4-2001.

3. Accused-petitioner Abdul Samad also submitted an application for his release on bail in the Court of learned Judicial Magistrate, Swabi. His application was also allowed and he was directed to be released on bail vide order, dated 18-1-2001. The complainant moved an application for cancellation of bail granted it) him in the Court of learned Sessions Judge, Swabi who vide order, dated 11-4-2001 cancelled/recalled the bail granted to him.

4. The petitioner through separate bail applications have moved this Court for their release on bail all the (three) applications shall be disposed of by this order.

5. On 20-12-2000 Arshad Ali brother of -the complainant reported the matter to the police which was incorporated in the Roznamcha No.26, dated 20-12-2000, in Police Station Kalu Khan; that his brother Umar Farooq went out of his house on the sound of the door bell and did not return back. Later on statement of the complainant was recorded under section 164, Cr.P.C. in which he stated that he was present in his house at night time, when he went out on the sound of the door bell; that his uncle's son Ishfaq son of Misal resident of Asota Sharif told him that there were guests in the Hujra; that the complainant went to his Hujra where Muhammad Afzal Khan son of Jabar Khan resident of Shawa and Abdul Samad son of Abdul Jalil resident of Asota Sharif were present who told him that they had some private matter to discuss with him; that the complainant went out with them towards the fields; that when they reached property of Siraj there two unknown armed persons were present and threatened the complainant with dire consequences and asked to accompany them; that when they reached the property of Muhammad Younis the accused named in the F.I.R. tied up his eyes, kept him in a cell for 14 days; that the accused has extorted Rs.3 lacs on the release of the complainant. The motive is stated to be dispute of landed property.

6. Barrister S. Masood Kausar, the learned counsel representing the petitioners argued that the entire story has been concocted by the complainant which does not inspire any confidence. Neither the amount of ransom has been recovered nor there is any other evidence available on the record to show as to how and to whom the money was paid. It is also not clear as to who was the recipient of the ransom amount. There is no independent evidence to connect the accused-petitioners with the commission of offence and the Investigating Officer has not even bothered to visit the spot where the abductee was reported to have been kept in confinement. The accused-petitioners are close relatives of the alleged abductee and there was no possibility of the commission of offence at the hands of such near relatives who could be eventually identified.

7. It was further argued that the accused-petitioners had submitted an application to the Inspector-General of Police that the investigation of the case be investigated by independent agency upon which the matter was inquired/investigated by the Crimes Branch and the officials who investigated the case reached the conclusion that the case of the accused petitioners was concocted and false. Keeping in view the above mentioned facts, the case of the accused-petitioners is that of further inquiry, hence they are entitled to the concession of bail.

8. On the other hand, Mr. Javed A. Khan, Advocate, learned counsel representing the complainant and Mr. Jamshaid Khan, Advocate, learned counsel representing the State opposed the grant of bail on the grounds that the abductee on release on 2-1-2001 recorded statement under section 164 of the Cr.P.C. wherein he narrated the detail story as to how he was abducted where he was kept and who were the persons involved in the commission of the offence. Not only the accused petitioners were directly charged but two other unknown persons were also charged for the commission of the offence. The motive behind the occurrence was dispute over the landed property. The complainant Umar Farooq had taken over the possession of the share of the property belonged to his mother and there was a dispute with the father of Afzal Khan, Abdul Samad and the factum of the dispute over the landed property has also been confirmed by the Investigating Agency as well as by the Inquiry Officer appointed on the application of the petitioners.

9. On the question of payment of ransom amount it was argued that one Nawab Ali in his statement recorded under section 161 of the Cr.P.C. has in clear words stated that the mother of the abductee had informed him about the demand of ransom amount which was arranged and paid to the persons who were asked to be paid at Bajawar.

10. It was argued that the accused-petitioners did not take any plea of alibi in their bail applications submitted before the learned Judicial Magistrate. However, the plea of alibi for the first time was taken when the bail granted to accused Afzal Khan and Abdul Samad were cancelled by the learned Sessions Judge. In their application submitted for inquiry, the said plea was again reiterated which shows that this plea was taken as an afterthought. No confidence-inspiring evidence in support of the plea of alibi has been recorded and placed on the record.

11. It was also argued that one Zahid son of Misal Khan in his statement recorded under section 161, Cr.P.C. stated that he had also seen the accused-petitioner Afzal Khan and Abdul Samad alongwith two other unknown persons grappling with the abductee near the fields of Siraj, therefore, strong case exists against the petitioners connecting them with the commission of the offence, and therefore, they are not entitled to be released on bail.

12. We have heard the learned counsel for the parties at length:

13. Umar Farooq, the abductee, was released after 14 days of the date of occurrence. Immediately after his release from the clutches of the accused-petitioner, he made statement under section 164, Cr.P.C. in which he narrated the entire episode in detail. All the petitioners were charged alongwith two other unknown persons and each petitioner was assigned specific role. One Nawab Ali's statement was also recorded under section 161, Cr.P.C. He stated that the mother of the abductee on receipt of demand on telephone for payment of ransom amount contacted him, and a sum of Rs.3,00,000 (Rs. three lacs) were arranged for onward payment for release of the abductee and the said amount was paid through him (Nawab Ali) at Bajawar. Similarly one Zahid Khan's statement was also recorded under section 161, Cr.P.C. who stated that on the eventful evening he had seen Afzal Khan and Abdul Samad grappling with the abductee near the lands of one Siraj. The tentative assessment of the above evidence shows that there is a strong prima facie, case connecting the accused petitioner with the commission of the offence.

14. So far as the plea of alibi of the accused-petitioners is concerned, the perusal of their applications submitted before the learned Judicial Magistrate for their release on bail show that the same do not contain any such plea. The plea of alibi was taken at belated stage and the said plea is yet to be established during the trial, as no convincing evidence is available on record in support of said plea.

15. So far as the inquiry conducted by the Crime Branch is concerned, suffice it to say that a trend has recently developed that re investigations/re-inquiries are liberally entrusted to other agencies by the High-ups of the Police Department on the application submitted by the accused who are usually successful in obtaining favourable report$ by arranging false evidence which not only hamper the investigation of the case but room for doubt is also created which help them in availing concession of bail.

16. In the case in hand the officials who conducted inquiry, gave opinion that the accused-petitioners are innocent, but their opinion is not binding on the Court. Even the said opinion was not accepted by the Investigating Officer as we were informed at the bar by the learned counsel representing the State that the challan of the case is complete and would be submitted in a couple of days. Had the Investigating Officer, also found the accused-petitioners innocent, he would, have instead of completing challan against the accused-petitioners moved the proper Court for their release under section 169, Cr.P.C. This fact also shows that there exists a strong case against the accused petitioners.

17. After going through the record and perusing the case-law cited at the Bar we have come to the conclusion that the accused-petitioners are prima facie connected with the commission of the offence punishable with death or imprisonment for life. We are, therefore, not inclined to release the accused-petitioners on bail. Their bail applications (Criminal Miscellaneous No-432 of 2001, Criminal Miscellaneous No.433 of 2001 and Criminal Miscellaneous No.434 of 2001) are dismissed. Since the challan of the case is complete, therefore, the prosecution is directed to submit the same within 13 days in the proper Court and the learned trial Court is directed to conclude the trial within a period of four months failing which the accused-petitioners shall be at liberty to move afresh for their release on bail.

N.H.Q./357/P Bail refused.