Syed SAADAT HUSSAIN SHAH vs THE STATE and anothers
This matter involves two criminal miscellaneous petitions filed by the petitioners Syed Saadat Hussain Shah and Syed Ahsan Haider Shah seeking post-arrest bail in a case registered under Sections 302/34 of the Pakistan Penal Code 1860 and Section 4 of the Special Courts Act. The core legal question centered on whether the delayed statement of an eye-witness who subsequently swore an affidavit resiling from it, alongside disputed recoveries and confessional statements recorded in police custody, warranted further inquiry into the guilt of the accused. The Peshawar High Court held that the evidentiary value of the belated and retracted eye-witness account, the efficacy of discoveries made at the instance of the accused, and the admissibility of statements made in police custody captured on video raised substantial questions necessitating further inquiry. Consequently, the court allowed the petitions and granted post-arrest bail to the petitioners, subject to furnishing substantial sureties, while noting the State's liberty to seek bail cancellation upon collecting further incriminating material.
- Does a delayed statement of an eye-witness who subsequently swears an affidavit resiling from it create a case for further inquiry under bail adjudication?
- Whether recoveries made at the instance of accused persons during police custody can conclusively connect them to the crime at the bail stage?
- Do statements made by accused persons in police custody change their legal character and escape statutory exclusion merely because they are recorded on a movie camera?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 4, Special Courts Act 1975
- Section 161, Code of Criminal Procedure 1898
- Article 38, Qanun-e-Shahadat Order 1984
' EJAZ AFZAL KHAN, J.--- Syed Saadat Hussain Shah, petitioner in Criminal Miscellaneous No,167 of 2001 and Syed Ahsan Haider Shah, petitioner in Criminal Miscellaneous No,184 of 2001, who are charged in a case registered under sections 302/34, P.P.C. Read with 4 S.T.A. Vide F.I.R. No,324, dated 7-5-2001, Police Station Cantt. D.I. Khan when failed to get the concession of bail from the lower forum moved this Court for their being released on bail.
2. As both the applications arise out of the same F.I.R. And the same order, we propose to dispose them of through this single order.
3. The facts stated in brief are that on the eventful day the deceased Ejaz Ahmad Langaryal, S.P., D.I.
Khan was on his usual evening jogging track that he was fired at by some unidentified assailants and thus done to death.
4. The police investigating the case despite hectic efforts remained clueless but on 15-6-2001 one Muhammad Khalil was examined under section 161 wherein he charged the petitioner for driving the motorcycle and Shamim Abbas Nadir sitting on its back with Kalashnikov for effectively firing at the deceased, while Ahsan Haider was hauld up on the basis of suspicion and during the course of police custody a jeep and motorcycle were recovered at the instance of Saadat Hussain while a cycle was recovered at the instance of Syed Ahsan Haider.
5. The learned counsel for the petitioner contended that besides the police statement of the accused there is no other evidence as can connect them with the crime; that charge against Saadat Hussain has been made by P.W1 Khalil after the lapse of one month and eight days who subsequently resiled therefrom by swearing on an affidavit; that Ahsan Haider has been hauld up only on the basis of suspicion; that the accused-petitioners remained in police custody for several days but nothing incriminating came to the fore to connect them with the crime; that the recoveries allegedly made at their instance cannot reasonably lead to the hypothesis to their guilt and that there are grounds for further enquiry as such they are entitled to be released on bail.
6. The learned Deputy Advocate-General assisted by the learned counsel for the complainant contended that the petitioner Saadat Hussain has been directly charged by an eye-witness; that the statements of the petitioners before the police and discoveries at their instance which have also been snapped through a movie camera are by all means sufficient to reasonably connect them with the crime and that they do not deserve the concession of bail as they are responsible for a brutal murder of a Senior Police Officer.
7. We have carefully analysed the submissions of the learned counsel for the parties and have gone through the record with their assistance.
8. What is the value of the statement of the eye-witness so-called who remained silent for more than a month and after making it again disowned its truth by swearing on an affidavit presented today in the Court which was not convincingly disputed by the counsel for the respondents.
Likewise whether discovery of the jeep, motorcycle and cycle at the instance of the petitioners can reasonably lead to hypothesis of their alleged guilt and whether the statements of the petitioners made in the immediate presence of the police would change their character and would take them outside the scope of Article 38 of the Qanun-e-Shahadat simply because the making thereof was snapped through a movie camera are the questions which necessitate further enquiry and thus, make out a case for grant of bail.
' We, therefore, allow these petitions and direct the release of the petitioners if they furnish bail bonds in the sum of Rupees ten lacs each with two sureties each in the like amount to the satisfaction of the learned Judge, Special Court who is to ensure that the sureties are local, reliable and men of means. However, the State may, if so advised, move the Court for cancellation of bail after collecting some material reasonably connecting them with the crime.
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