SALMAN QURESHI Versus State
This is an application for post-arrest bail moved by applicant Salman Qureshi, who was booked in an F.I.R. under sections 365-A/34 of the Pakistan Penal Code 1860 for kidnapping for ransom. The core legal question revolves around whether the applicant's involvement falls within the scope of further inquiry under section 497(2) of the Code of Criminal Procedure 1898, given the absence of his name in the F.I.R. and subsequent statements, the statements of an approver co-accused not implicating him, and an arguable delay and sequence regarding the registration of the F.I.R. and recovery memo. The Sindh High Court held that the case of the applicant required further probe and inquiry as his name did not transpire in the F.I.R. or complainant's further statement despite prior acquaintance, the approver did not implicate him, and the recovery memo lacked a crime number. The court laid down the principle that where reasonable grounds exist pointing toward further inquiry into a defendant's participation in a heinous offense, bail should be granted under section 497(2) of the Code of Criminal Procedure 1898.
- Whether bail can be granted when the accused's name is omitted from the F.I.R. and subsequent statements despite prior acquaintance?
- Does the statement of an approver not implicating an accused warrant further inquiry under section 497(2) of the Code of Criminal Procedure 1898?
- Is an accused entitled to post-arrest bail when the timing of the registration of the F.I.R. vis-a-vis the recovery memo is doubtful?
- Section 365-A, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 164, Code of Criminal Procedure 1898
- Section 337(2), Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
BHAJANDAS TEJWANI, J.--- This is an application for bail after arrest moved by applicant Salman Qureshi, who has been booked in F.I.R. No.422 of 2008 of Police Station New Town Karachi under sections 365-A/34, P.P.C.
2. The brief facts of the prosecution case as alleged in the F.I.R. lodged by complainant Nafees Ahmed Siddiqui on 4-11-2008 at 5-15 a.m. are that on 2-11-2008 at about 0030 hours when he was going to his house in his car along with his son Talha Ahmed aged about 13/14 years and at about 0045 hours his car reached opposite Masjid-e-Farooqui near Old DC (East) Office, an Alto Car VXR of silver golden colour stopped his car in which one lady and male persons were sitting. Out of them two persons came down from the car and forcibly took Talha Ahmed with them on the force of weapon. Thereafter regular phone calls were being received by the complainant from the mobile phone of the culprits. After lodging the above F.I.R, according to the prosecution case, on information a raid was conducted by S.H.O. on a house wherefrom accused Mst. Laiba, Imran Ahsan alias Sunny and Zubair alias Mamo and the present applicant were arrested and Talha was recovered in presence of complainant and such memo. of arrest was prepared at 0645 hours and thereafter during course of investigation the accused Laiba by confessing her guilt tendered pardon therefore she was made approver and her 164, Cr.P.C. statement was recorded as a witness in the matter.
3. We have heard the arguments of Messrs A.Q. Halepota and Rasheed Nizamani learned counsel for the applicant and Mr. Zafar Ahmed Khan, learned Additional Prosecutor-General Sindh and perused the material available on record.
4. Mr. A.Q. Halepota, learned counsel for the applicant has contented that there is delay of two days in the lodging of F.I.R. for such a heinous offence, wherein son of applicant was kidnapped but there is no such explanation of the delay. The F.I.R. was lodged on the application of complainant made by him on 3-11-2008 and according to the learned counsel this application was malafidely kept aside and no prompt F.I.R. was lodged but suddenly in the morning after making alleged recovery and arrest of applicant and others accused, the F.I.R. of the incident was lodged in the early morning of 4-11-2008 on such application. In support of his contention he has referred Mashirnama of arrest and recovery of kidnapped boy Talha Ahmed on which no crime number is arrayed. Learned counsel has argued that in case F.I.R. of the incident would have been registered before the recovery of the boy Talha Ahmed definitely crime number of the same would have been mentioned on such memo of arrest and recovery.
5. Next contention of Mr. Halepota is that co-accused Laiba, who is alleged to have played role in the commission of offence has been declared approver and in terms of subsection (2) of section 337, Cr.P.C., she is to be termed as prosecution witness and in her 164, Cr.P.C. statement before the Magistrate she in clear terms has not implicated the present applicant as the culprit of the incident and has only implicated co-accused Imran and Zubair who are also alleged to have kidnapped the abductee boy and kept him in their confinement along with co-accused Laiba. It was further contended by the learned counsel that the present applicant, as Estate Broker, was already known to complainant but the complainant did not disclose his name in the F.I.R. as well as in further statement which was recorded after the alleged successful raid in which abductee Talha Ahmed was recovered and accused were arrested in. presence of complainant. In support of his contention the learned counsel has relied on General Power of Attorney (page 111 of the file) executed by complainant Nafees Ahmed Siddiqui in favour of one Muhammad Khurram Khan which is in respect of transaction of the property in which the present applicant is cited as a witness and this Power of Attorney was executed on 20th day of August, 2008 i.e. much prior to the lodging of F.I.R. learned counsel has also contended that no doubt the present applicant has close friendly relation with co-accused Laiba and he has arranged house for her and so also given her car for use but that will not connect the applicant with the alleged crime therefore, according to him, the case of present applicant with regard to his involvement in the crime requires further inquiry and he is entitled for the concession of bail.
6. Mr. Zafar Ahmed Khan, learned Additional Prosecutor-General, Sindh has opposed the grant of bail on the ground that applicant is involved in a heinous crime which provides punishment of life imprisonment or death and that when the boy was recovered the applicant was available at the house and was arrested at the spot and on the 164, Cr.P.C. statement of Laiba the learned Additional Prosecutor-General stated that it is to be determined at trial stage.
7. No doubt, the bail in such cases involving sentence for life imprisonment or death is not to be granted as a rule but when there is a case of further inquiry with regard to the involvement of a person, the Court can consider to grant him the concession of the bail in terms of subsection (2) of section 497, Cr.P.C.
8. In this case it is admitted position that in F.I.R. and so also in further statement of the complainant which was recorded after the alleged recovery of the boy and arrest of all the accused involved, the name of applicant does not transpire. The alleged raid was conducted in presence of complainant and it has also not been rebutted that the present applicant was not known to the complainant. The co-accused Laiba involved in the matter, has confessed her guilt and tendered pardon on the condition that she has made full and true disclosure of whole incident and was declared approver, has also not implicated the present applicant in commission of such offence in her 164, Cr.P.C. statement. The position of co-accused Laiba after becoming approver is as of prosecution witness in terms of subsection (2) of section 337, Cr.P.C. Moreover, it is yet to be determined that the F.I.R. was registered after the alleged raid and recovery of boy or after the recovery as no crime or F.I.R. number has been arrayed on the memo. of conducting of raid, recovery of boy and arrest of all accused persons including present applicant, therefore, in our opinion, the case of applicant with regard to his involvement still requires further probe and inquiry and till then the applicant is entitled to be released on bail.
9. For the foregoing reasons, we, by short order dated 12-3-2010 allowed the bail application, and directed for release of the applicant on his furnishing surety in the sum of Rs.5,00,000 (Rupees five lacs only) and P.R. bond in the like amount to the satisfaction of the learned trial Court.
H.B.T./S-29/K Bail granted.