SHER MUHAMMAD Versus State
This matter arises from a post-arrest bail application filed by the applicant Sher Muhammad in a criminal case registered under sections 324, 353, 365-A, 148, and 149 of the Pakistan Penal Code 1860, read with section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance 1979 and section 7 of the Anti-Terrorism Act 1997. The core legal question is whether the applicant is entitled to post-arrest bail despite being implicated by the abductee, having no prior name in the F.I.R., and remaining a fugitive from law for over a year and a half for an offense falling within the prohibitory clause of the Code of Criminal Procedure 1898. The court held that prima facie sufficient material connects the applicant to the heinous crime and that he remained an absconder, thus failing to make out a case for bail. The ratio is that where an accused is directly implicated by the victim for a heinous offense and has absconded, post-arrest bail ought to be refused. The court dismissed the bail application with directions to the trial court to expedite the trial.
- Whether an accused not named in the F.I.R. but subsequently implicated by the abductee is entitled to post-arrest bail?
- Does remaining a fugitive from law disentitle an accused to the concession of bail in offenses falling within the prohibitory clause?
- Whether tentative assessment of material at the bail stage is sufficient to connect an accused with an offense under the Anti-Terrorism Act 1997?
- Section 324, Pakistan Penal Code 1860
- Section 353, Pakistan Penal Code 1860
- Section 365-A, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance 1979
- Section 7, Anti-Terrorism Act 1997
- Section 497, Code of Criminal Procedure 1898
ORDER
KHADIM HUSSAIN M. SHAIKH, J.--- Through this application, applicant Sher Muhammad seeks post arrest bail in crime No.103 of 2004 Police Station Buxapur, for offences under sections 324, 353, 365-A, 148, 149, P.P.C. read with section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979, and section 7 of Anti-Terrorism Act, 1997, after his bail plea has been declined by the learned trial Court that is to say Anti-Terrorism Court, Jacobabad vide order dated 7-5-2009.
2. Briefly the facts of the prosecution case are that on 4-1.1-2004, one Muhammad Akram son of Ghulam Fareed Arain, resident of T.T. Hotel, Madina Colony, Chak No.10, Sadiqabad, District Rahim Yar Khan was abducted by four persons for ransom on the strength of weapons in a car belonging to the abductee Muhammad Akram which he used to ply as taxi in Sadiqabad area Punjab. Then the said abductee Muhammad Akram was recovered after an encounter of the police party comprising Inspector Shabir Ahmed S.H.O. Police Station Buxapur and his subordinate staff with the kidnappers near link road leading towards Misri Khan village on National Highway Kandhkot-Kashmore road and one culprit namely Mureed alias Muhammad Mureed Jakhrani was also apprehended at the spot one kalashnikov loaded with magazine was recovered from his possession and whereas the rest three kidnappers made good their escape, leaving one pistol there. Abductee Muhammad Akram arrested accused Mureed alias Muhammad Mureed and recovered property were brought at Police Station Buxapur, where Inspector Shabir Ahmed S.H.O. Police Station Buxapur lodged his above F.I.R.
3. After the investigation accused Mureed alias Muhammad Mureed was sent up with the Challan showing three accused namely, Fareed son of Abdul Karim Bhangwar, Sher Muhammad son of Biland (applicant) and Muneer son of Muhammad Sharif Mazari as absconders.
4. On 22-5-2006, applicant Sher Muhammad was arrested and he was sent up with the subsequent challan.
5. The bail application moved, on behalf of the applicant Sher Muhammad before the learned trial Court was rejected vide order dated 7-5-2009, hence this bail application.
6. Learned Advocate for the applicant has mainly contended that the applicant is innocent and he has been falsely implicated in this case that the name of the applicant does not find place in the F.I.R. and that no recovery was effected from him, therefore, per him he is entitled to be enlarged on bail.
7. The learned State Counsel has raised no objection to the grant of bail to the applicant.
8. We have carefully considered the arguments advanced by the learned counsel for the parties and have gone through the material placed before the Court with the assistance of the learned State counsel. No doubt the name of applicant does not appear in F.I.R., but abductee Muhammad Akram Arain has named the present applicant Sher Muhammad to be one of the four culprits, who kidnapped him for ransom and thereby he has implicated the present applicant in the commission of this crime, the applicant remained fugitive from law for more than one and half year and thereafter he was arrested and sent up with the supplementary challan, the learned Advocate for the applicant has not pleaded any hostility between the applicant Sher Muhammad and abductee Muhammad Akram Arain, and prima facie there is sufficient material available against the applicant Sher Muhammad to connect him with the above offences, which fall within the prohibitory clause of section 497, Cr.P.C.
9. In view of what has been discussed above we are of the considered opinion that the applicant has failed to make out his case for grant of bail therefore, this bail application is dismissed.
10. However, the learned trial Court is directed to record evidence of the witnesses including abductee Muhammad Akram Arain by procuring their attendance even through coercive process if needed and conclude the trial expeditiously as required by law. The applicant may repeat his bail application before the learned trial Court after the evidence of material witnesses is recorded, which the trial Court shall decide on its own merits accordingly.
11. The observations made hereinabove are tentative in nature for the purpose of only disposal of bail application the same shall not influence the mind of the learned trial Court while deciding the case.
H.B.T./S-93/K Bail refused.