SAHIB KHAROOS vs THE STATE
This is a criminal bail application before the Sindh High Court where the applicant sought post-arrest bail in Crime No. 13 of 2001 registered under sections 364-A and 34 of the Pakistan Penal Code and section 337-H(2) of the Enforcement of Odiat and Qisas Ordinance. The core legal question was whether the applicant was entitled to post-arrest bail in a heinous offence involving an attempt to abduct a minor girl, where the offence is punishable with death or life imprisonment, and where a statement under section 164 of the Code of Criminal Procedure implicating the accused exists alongside admitted enmity. The court held that the applicant was not entitled to bail, dismissing the application on the ground that the offence is heinous, punishable with death or life imprisonment, and supported prima facie by the victim's section 164 statement. The key principle laid down is that admitted enmity operates as a double-edged weapon cutting both ways, and bail may be refused in heinous offences involving attempts where the statutory punishment extends to death or life imprisonment and prima facie material implicates the accused.
- Whether post-arrest bail should be granted in a case of attempted abduction punishable with death or life imprisonment?
- Does an admitted enmity between the parties operate as a double-edged weapon in bail matters?
- What is the evidentiary value of a statement recorded under section 164 of the Code of Criminal Procedure at the bail stage?
- Section 364-A, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 337-H(2), Enforcement of Odiat and Qisas Ordinance
- Section 164, Code of Criminal Procedure 1898
ORDER
1. ' Present applicant is seeking bail in Crime No 13 of 2001 registered with Police Station Bakhan, under sections; ,-.364-A and 34, P.P.C. Read widitleckipn 337-H(2) Qisas and Diyat Ordinance.
2. ' Inqr AIN') Brief facts of the prosecution case as disclosed in the F.I.R. Lodged by complainant Khudaillux on 26-1-2001 at 16-15 hours, 'alleging therein that he alongwith his son Mithatitinad Bachal and relative Muhammad Agil were thrashing their paddy crop dera lying their land, his little daughter Jannat Khatoon aged about 9/10 years was pulling kalongwith other little children on the otherotide of Nootan Wah. It was 0230 hours nnon thne,3. When the complainant party heard the cries of his daughter Jannat Khatoon and other children, they rushed there and saw that accused Mithal alias Mitho Kharos and Sahab the present applicant, both had guns were standing there, accused Mitho Kharos was dragging to Jannat Khatoon from her hands an&applicantfaccused Shahab returning back to other children. Complainant party then raised cries. Thereafter, both the accused while firing in the air ran away. On the cries and gun-shot report co-villages were attracted there, who also saw the accused, then accused party ran away to western side in the Jungle. Complainant thereafter came to Police Station and lodged the report against the accused.
3. The Dakhan police after the incident arrested the applicant/accused and challaned the case.
4. ' Learned Advocate for the applicant has contended that there is only an attempt on 1 the part of the applicant and no overt act is attributed to him. He has further contended that there is admitted enmity between the complainant and the accused party and false implication of the present applicant cannot be nailed out in view of the admitted enmity.
5. ' On the other hand Mr. Ghulam Asghar Abro, Advocate for the complainant has stated that the 164, Cr.P.C, statement of abductee Mst. Jannat has been recorded, who has fully implicated the applicant and this is very serious offence which is punishable with death or life imprisonment and has opposed to ' the grant, of bail.
6. ' Mr. Gul Hassan Solangi, Advocate appearing on behalf of the State has recorded no objection if the bail is granted to the applicant and has agreed with the contentions raised by the learned counsel for the applicant.
7. ' I have considered the arguments rendered by the learned counsel for the parties and have gone through the impugned order and the material available on the record. Admittedly both the accused named respectively Mithal alias Mitho hand. Shahab went to the lands of complainant where the girls were available for pulling 'Pally' and both the accused were duly armed and they were dragging away Mst. Jannat who raised cries and on her cries the complainant and ' other villagers were attracted and thus, the applicant alongwith co-accused Mitho could not succeed in his efforts. No doubt it is the case of an attempt but the present applicant alongwith co-accused Mitho was interrupted on the cries raised by Mst. Jannat and complainant and other villagers attracted to the cries. Had they not been attracted to the place of Vardhat on the cries, the applicant alongwith co-accused Mithal alias Mitho would have succeeded in this nefarious designs and would have consummated the offence. Prima facie, there is statement of the said Mst.
8. Jannat in the shape of 164, Cr.P.C. Against the present applicant and the offence is punishable with death or life imprisonment and the act of the applicant is very heinous and enmity is also admitted, which is double-edged weapon and cuts both the ways. There is every possibility on, the part of the applicant to commit such offence to settle his scores with the complainant ,party and at the moment there is involvement of the present applicant in the, present offence and I do not find any merits in the bail application and the same is dismissed.