SHER MUHAMMAD vs SARDAR ALI and anothers
This matter arises from a criminal petition for post-arrest bail filed by Sher Muhammad, who along with others was implicated in a case registered under sections 457, 380, and 411 of the Pakistan Penal Code 1860, read with section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance 1979. The core legal question concerns whether the petitioner was entitled to post-arrest bail given the delayed FIR, lack of recoveries, absence of identification, and lack of confession. The Peshawar High Court held that since no recovery was effected from the petitioner, no confession was made by him, he was not identified in an identification parade, and the FIR was lodged with an unexplained delay of thirty-five days naming seven persons without initial knowledge, his involvement remained a matter for determination at trial. The application was accepted, and the petitioner was granted post-arrest bail subject to furnishing surety bonds. The key principle laid down is that where an accused is not connected to the crime through recoveries, confessions, or identification, and the FIR suffers from unexplained delay, further inquiry into his guilt warrants the grant of bail pending trial.
- Whether an accused is entitled to post-arrest bail when the FIR is lodged with an unexplained delay of thirty-five days naming him without prior identification?
- Does the absence of any recovery, confession, or identification parade justify releasing an accused on post-arrest bail for further inquiry?
- Whether involvement in a crime under sections 457, 380, and 411 of the Pakistan Penal Code warrants pre-trial incarceration when no direct evidence exists against the petitioner?
- Section 457, Pakistan Penal Code 1860
- Section 380, Pakistan Penal Code 1860
- Section 411, Pakistan Penal Code 1860
- Section 14, Offences Against Property (Enforcement of Hudood) Ordinance 1979
' Sher Muhammad son of Daran Khan, alongwith others, is involved in a case under sections 457/380/411, P.P.C. Read with section 14 of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979, vide F.I.R. No,65, dated 25-1-2001 of Police Station Lahor, Swabi, lodged by the complainant Sardar Ali.
2. The occurrence had taken place on the night between 21st and 22nd December, 2000 when some unknown and unidentified persons had entered the house of complainant Sardar Ali at midnight and had robbed his numerous articles mentioned in the F.I.R. Had he known the culprits, he would have immediately given their names at the most earliest but in the instant case the very F.I.R.- was lodged with a delay of thirty-five days wherein he charged as many as seven persons, namely, Amir Sultan, Sikandar, Nehar, Kishwar, Faiq, Fazle Wahab and the present 'petitioner Sher Muhammad. The delay is not explained because even if the culprits were not known, he could have reported the matter at the earliest.
3. Neither any recovery is effected from the petitioner nor any confession is made by him nor has he been identified in any parade nor there exists any evidence against him. Contrary thereto, the recoveries have been effected from Fazle Wahab, Amir Sultan, Faiq and Sikandar.
4. Amir Sultan co-accused had, statedly, made a confession but therein too the petitioner is not mentioned. Even in the site plan the name of the petitioner is not described.
5. In the circumstances, the involvement of the petitioner in the crime remains to be determined through the evidence at trial and till then he is entitled to be released on bail. The application is accepted and the petitioner is directed to be released on bail provided a bond in a sum of Rupees three lacs (Rs,3,00,000) with two local, reliable and resourceful sureties is furnished to the satisfaction of the Illaqa Magistrate alone.