Fazal Mabood Vs State

2011 P Cr. L J 1517

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

FAZAL MABOOD---Petitioner

Versus

THE STATE through S.H.O., Police Station Ghalegay---Respondent

Criminal Miscellaneous Nos. 72 and 81 of 2011, decided on 10th June, 2011.

C r i m i n a l P r o c e d u r e C o d e ( V of 1 8 9 8 ) - - -

- - - - S . 497(2)---Penal Code (XLV of 1860), Ss. 353/324/120/124-A, 148/149/365/427--- Explosive Substances Act (VI of 1908), Ss.3/4---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(2)(3)(4)----Anti-Terrorism Act (XXVII of 1997), S.7--- Assault or criminal force to deter public servant from discharging of his duty, attempt to commit qatl-e-amd, concealing design to commit offence, sedition, kidnapping, mischief, causing explosion and attempt to cause explosion and Haraabah, act of terrorism---Bail, grant o f - - - Further inquiry---None of accused persons was nominated as accused in the F.I.R.---None of the items, which were allegedly stolen/snatched from the personnel o f the law enforcing agencies, as mentioned in the F.I.R., had been recovered from them---Certain recovery memos though were available on file to show that some articles of the destroyed check post, such as bricks and iron etc., were recovered from the houses of certain persons, but same too, at that stage, did not connect accused persons with the crime, as none of those persons had named accused persons for the sale of alleged items to them---Only piece of evidence against accused that about 19 maund of iron purportedly to be the stolen iron of the destroyed building was recovered from his house, would also not sufficiently connect him with the commission of offence, being a matter of further probe as that in fact the iron in question was that of the Police Choki---Though one person in his statement under S.164, Cr.P.C. had named the accused person for the offence, but perusal of the record would reveal that some other cases of similar nature were also registered against accused persons through different F.I.R's.---Case of accused persons, in circumstances, became arguable for the purpose of bail---Accused persons, no doubt were charged for heinous offence, but it would not disqualify them from the relief of bail, if otherwise their case was found fit' for grant of bail---Accused were admitted to bail, in circumstances.

Abid Ali alias Ali v. The State 2011 SCMR 161 and Amir v. The State PLD 1972 SC 277 ref.

Muhammad Arshad Yousafzai for Petitioner.

Ikramullah Khan, A.A.-G. for the State.

Date of hearing: 10th June, 2011.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---The petitioner in Criminal Miscellaneous No. 72 of 2011 and the petitioners in the connected Criminal Miscellaneous No. 81 of 2011, seek their release on bail in case F.I.R. No. 22 dated 4-2-2009 Police Station Ghaligay, Swat registered under sections 353/324/120/124-A, 148/149/365/427, P.P.C. read with sections 3/4 of the Explosive Substances Act, 1908 read with section 17(2)(3)(4) of the Offences Against Property (Enforcement of Hadood) Ordinance, 1979 and section 7 of the Anti-Terrorism Act, 1997. As both the petitions arise out of one and the same F.I.R., therefore the sane are disposed of through this common judgment in Criminal Miscellaneous No.72 of 2011.

2.The learned counsel for the petitioners argued that the petitioners are innocent and have falsely been charged in the case. They are neither named in the F.I.R. nor any ocular or other circumstantial evidence is available on file to reasonably connect them with the commission of offence; hence they are entitled to be released on bail.

3.The learned A.A.-G. on the other hand opposed the bail applications and submitted that the petitioners are members of a banned organization who, in between the night of 3rd and 4th February, 2009, had encircled the police personnel as well as an F.C. platoon present in Police Choki Shamozai, made firing, overpowered them, took away their arms etc., and destroyed the police post with explosive substance. One Painda Muhammad, on 19-10-2009, recorded his statement under section 164, Cr.P.C. wherein he, while posing himself to be an eye-witness of the occurrence, has named the petitioners etc. responsible for the incident in question. The petitioners are, therefore, prima facie connected with the commission of offence and not entitled to the concession of bail:

4.Learned counsel for the petitioner and the learned DAG for the State were heard and record of the case was perused.

5.Perusal of the record would reveal that none of the petitioners are nominated as accused in the F.I.R. Similarly, none of the items, which were allegedly stolen/snatched from the personnel of the law-enforcing agencies, as mentioned in the F.I.R., have been recovered from them. Although certain recovery memos are available on file to show that some articles of the destroyed check post, such as bricks and iron etc. were recovered from the houses of certain persons, but the same too, at this stage, does not connect the petitioners with the crime, as none of those persons have named the petitioners for the sale of alleged items to them. The only piece of evidence against Fazal Mabood, petitioner, that about 19 mounds of iron, purportedly to be the stolen iron of the destroyed building was recovered from his house, would also not sufficiently connect him with the commission of offence, being a matter of further probe, that in fact the iron in question was that of the police choki. Similarly, though one Painda Muhammad in his

statement under section 164, Cr.P.C. has named the petitioners for the offence but perusal of the record would reveal that some other cases of similar nature were also registered against the petitioners through different F.I.Rs., and photocopy of the statement of Painda Muhammad has been placed on the files of all those F.I.Rs. In these circumstances, the petitioners' case becomes arguable for the purpose of bail The petitioners, no doubt, are charged for a heinous offence, but it would not disqualify then for the relief of bail, if otherwise their case is found fit for grant of bail. The august Supreme Court of Pakistan in the case of Abid Ali alias Ali v. The State (2011 SCMR 161) has again reaffirmed its dictum earlier laid down in the case of Amir v. The State (PLD 1972 SC 277) that even for the purpose of bail, law is not to be stretched in favour of the prosecution. In the circumstances stated above, this Court is inclined to extend the concession of bail to the petitioners but with certain conditions.

So, without prejudiced to the merits of the case, these petitions are allowed and the petitioners are directed to be released on bail provided they furnish bail bonds each in the sum of Rs.5,00,000 (Rs.five lacs) with two sureties each in the like amount to the satisfaction of Illaqa/Judicial/Duty Magistrate. The sureties shall be reliable and men of means. They shall also undertake in the bail bonds that they will remain peaceful for the rest of life and will not join any group of militants and shall further undertake that they will not leave their District without informing the Police Station concerned and shall also disclose the place of visit and duration of stay, in case they cross to another District. This condition shall remain in force for one year, whereafter it shall become ineffective if the petitioners are found of good manner and characters during this period.

H.B.T./216/P Bail granted.