FEROZ vs THE STATE

' Pursuant to an information stated to have been received by complainant Sher Zaman Khan, S.H.O.

Police Station Badaber on 30-6-2003 that a gang of notorious dacoits, car-lifters and kidnappers has assembled in a deserted house situated at Sheikh Muhammadi Road with intent to commit a Wardat, the house was raided the same day at about 22-00 hours by a police party headed by the complainant. On seeing the police party occupants of the house made an attempt to escape. Their attempt was foiled and five of them were chased and apprehended. They were found wearing police uniform. On asking they disclosed their names as Hamidullah son of Haj.i Sadiq, Zarif son of Shah Wali, Feroz son of Zard Ali, Nadir son of Aminullah and Gulalai son of Ghulam Qadir. A huge quantity of arms and ammunition consisting of kalashnikovs, pistols, handgrenades and chargers etc. Was recovered from their possession. A case was registered against them under sections 399/ 400/401/170/171/148/149, P.P.C. Read with section 13, Arms Ordinance and section 6 of the Explosive Substances Act vide F.I.R. No,518, dated 30-6-2003.

2. The petitioners moved applications for grant of bail before the Courts below which were rejected through orders, dated 17-7-2003 and 2-9-2003 respectively. Petitioners have approached this Court with the similar prayer by way of filing instant Bail Applications bearing No,1017 and 1036 of 2003. This order will dispose of both the matters.

3. Mr. Tafseel Khan Afridi, Advocate for the petitioners pressed the bail applications on the ground that there is no direct or indirect evidence on the record to connect the petitioners with the guilt, and that the petitioners have been charged malafidely in view of a petition filed by them under section 491, Cr.P.C. Against the local police. Additionally it was urged that recovery is highly doubtful and the same was foisted upon the petitioners with ulterior motive. Reliance was placed on Rahat Shah and 3 others v. The State 2002 PCr.LJ 1309 (Pesh.), Munsib Khan v. The State 1999 PCr.LJ 1264, Ihsanullah v. The State PLD 1995 Pesh. 106 and Ali Anwar v. The State 2003 PCr.LJ 974 (Kar.)

4. Appearing on behalf of the State Mr. Fayaz Khan Chamkani, Advocate strongly opposed the bail applications and contended that prosecution is in possession of sufficient material to associate the petitioners with the crime and the petitioners have not been able to point out any background of or bitterness between the petitioners and the local police so as to prompt the latter to falsely implicate the former in a case of this nature.

5. The question of grant/refusal of bail is to be determined judiciously having regard to the facts and circumstances of each case. Where the prosecution satisfies the Court, that there are reasonable grounds to believe that the accused has committed the offence falling in the first category, the Court must refuse bail. However, where the accused satisfies the Court that there are reasonable grounds to believe that he is not guilty of such offence then the Court must release him on bail. For arriving at the conclusion as to whether or not there are reasonable grounds to believe that the accused is guilty of offence, the Court will not conduct a preliminary inquiry/trial but will only have tentative assessm ent i,e, will look at the material collected by the police for and against the accused and be prima facie satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference of guilt. Deeper appreciation of the evidence and circumstances appearing in the case are neither desirable nor permissible at bail stage. So the Court will not minutely examine the merits of the case on plea of defence at that stage.

6. In the instant case I find that the petitioners have been apprehended from a deserted house during a raid conducted by the local police. The petitioners were found wearing police uniform. A large quantity of arms and ammunition has been recovered from the possession of the petitioners.

In the absence of enmity or bitterness between the petitioners it is difficult to believe that the massive arms and ammunition were foisted upon them. All these circumstances are sufficient to provide grounds for believing that the petitioners are prima facie connected with the offences falling under the prohibitory clause of section 497, Cr.P.C. And as such they do not deserve to be released on bail. The bail applications fail which are hereby dismissed.