AFTAB AHMAD vs THE STATE
This matter concerns a petition for post-arrest bail filed by five accused persons in connection with FIR No. 93/2001, registered under Sections 363, 382, 170, and 411 of the Pakistan Penal Code 1860. The core legal question was whether the petitioners were entitled to bail given the evidentiary gaps in the prosecution's case. The Court observed that none of the petitioners were named in the FIR, no identification parade was conducted to establish their identity, and the recovery of cash was insufficient to prima facie link them to the alleged offence. Furthermore, the Court noted the investigating officer's failure to identify the vehicle used or explain why the primary suspect named in the FIR was not arrested. Holding that the case required further inquiry, the Court granted bail to the petitioners. The key principle laid down is that where the prosecution fails to establish a prima facie link between the accused and the offence, and the case falls within the scope of further inquiry, the accused is entitled to the concession of bail under Section 497(2) of the Code of Criminal Procedure 1898.
- Does the absence of the accused's name in the FIR and the lack of an identification parade constitute grounds for further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Is the recovery of cash from an accused sufficient to establish a prima facie link to an offence when the accused was not named in the FIR?
- Can bail be granted when the investigating officer fails to provide a plausible explanation for the non-arrest of the primary suspect named in the FIR?
- Section 363, Pakistan Penal Code 1860
- Section 382, Pakistan Penal Code 1860
- Section 170, Pakistan Penal Code 1860
- Section 411, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER MUHAMMAD FARRUKH MAHMUD, J.- Aftab Ahmad, Zulfiqar, Muzaffar, Hussan and Ghulam Sarwar, petitioners, have sought their postarrest bail in a case FIR. No. 93/2001 dated 15.5.2001 under sections 363, 382, 170 PPC subsequently section 411 PPC was added, registered at Police Station Lohari Gate, Multan.
2. According to the FIR, on 14.5.2001 the complainant when he was travelling alongwith his brother was stopped by for persons, who were riding in a while colour car. Three accused came out of the car while one person, which and stout body remain stayed in the car and introduced as 'Thanedar' to the complainant and asked for his Identity Card. The complainant showed his Identity Card but that very person ordered him to accompany him to the Police Station and when they reached near the Fertilizer Factory situated at the Masoom Shah Road, the accused snatched Rs. 13,000/- from the complainant and Rs. 200/- from the pocket of his brother-PW. Meanwhile, the complainant succeeded in getting hold a Visiting Card inadvertently dropped by the accused, which reflected the name and address of the accused as Muhammad Nawaz, ASI, Police Station Burewala. The matter was reported to the police , by the complainant on 15.5.2001. According to the FIR, the complainant also informed the police officer, who recorded the FIR that he had heard that the same gang had been looting the other persons as well.
3. During the investigation, the police received affidavits of the PWs exonerating Muhammad Nawaz, ASI, the sole accused whose name had been mentioned in the FIR.
4. Subsequently, the police succeeded in arresting the present petitioners on 8.7.2001, who in usual manner led to the recovery of the cash amount from their houses. The total amount of cash recovered from the accused was Rs. 31,000/- as against Rs. .13,000/- allegedly looted by the accused.
5. I have heard the learned counsel for the parties and perused the record. It has been noticed that none of the petitioners was named in the FIR and their identification has not been established through the test of identification parade. The recovery of cash cannot prima facie link the accused with the offence. Similarly the investigating officer is unable to inform the Court the make or registration number of the car, which was allegedly used during the occurrence. No plausible reason could be given by the investigating officer, why Muhammad Nawaz, ASI, who was named in the FIR was not arrested.
6. In these circumstances, the allegation levelled against the petitioners in the FIR needs further prove and inquiry within the purview of sub-section 2 of section 497 Cr.P.C. I, therefore, allow this petition and admit the petitioners to bail, subject to their tendering bail bonds in the sum of Rs. One Lac each, with two sureties each, in the like amount to the satisfaction of the Trial Court/Duty Judge.