Abdul Rasheed and 2 others V. The State,
Bench: Zaheer Ud Din Kakar
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This case involved three men, Abdul Rasheed, Kangar Khan, and Saddam Hussain, who were accused of dacoity (armed robbery) under sections 395 and 34 of the Pakistan Penal Code after a motorcycle was allegedly snatched at gunpoint from a student near Mastung. The applicants had been denied bail by the Sessions Judge, Mastung, and approached the Balochistan High Court seeking post-arrest bail.
The High Court granted them bail. The judge noted several weaknesses in the case against the accused: there was an unexplained delay of about 21 to 22 hours between the incident and the filing of the police report (FIR), which raised doubts about possible deliberation or manipulation before naming suspects. Additionally, the accused were not named in the original FIR, no incriminating evidence was recovered from them, and there was no direct evidence linking them to the crime—only a statement made by a co-accused implicating them.
The court held that such disclosure statements' reliability should be tested at trial, not used to justify continued detention beforehand. Since the case file had already been submitted to the trial court but no real progress had occurred, keeping the accused in custody served no purpose. Citing Supreme Court precedents, the judge reaffirmed that bail is generally a right unless exceptional circumstances exist, and this case warranted "further inquiry." The accused were released on bail bonds of Rs. 200,000 each, with the court clarifying its observations were preliminary and would not affect the trial's outcome.
یہ مقدمہ تین افراد، عبدالرشید، کنگر خان اور صدام حسین سے متعلق ہے، جن پر مستونگ کے قریب ایک طالب علم سے اسلحے کے زور پر موٹرسائیکل چھیننے کے الزام میں تعزیراتِ پاکستان کی دفعہ 395 اور 34 کے تحت ڈکیتی کا مقدمہ درج کیا گیا تھا۔ درخواست گزاروں کو سیشن جج مستونگ نے ضمانت دینے سے انکار کر دیا تھا، جس کے بعد انہوں نے ازالتِ بعدِ گرفتاری ضمانت کے لیے بلوچستان ہائی کورٹ سے رجوع کیا۔
ہائی کورٹ نے انہیں ضمانت دے دی۔ جج نے مقدمے میں کئی کمزوریوں کی نشاندہی کی: واقعے اور ایف آئی آر درج کروانے کے درمیان تقریباً 21 سے 22 گھنٹے کی ناقابلِ وضاحت تاخیر تھی، جس سے یہ شبہ پیدا ہوتا ہے کہ ملزمان کا نام لینے سے پہلے کہیں سوچ بچار یا ردوبدل کیا گیا ہو۔ مزید یہ کہ ملزمان کا نام ابتدائی ایف آئی آر میں شامل نہیں تھا، ان سے کوئی قابلِ اعتراض شے برآمد نہیں ہوئی، اور جرم سے ان کا کوئی براہِ راست تعلق ثابت کرنے والا شواہد موج
Generated from the full judgment text below — not a substitute for reading the actual opinion.
2018 Y L R Note 3 [Balochistan] Before Zaheer- ud-Din Kakar, J ABDUL RASHEED and 2 others ---Applicants Versus The STATE---Respondent Criminal Bail Application No.178 of 2017, decided on 29th May, 2017. Criminal Procedure Code (V of 1898) -- ----S. 497---Penal Code (XLV of 1860), Ss. 395 & 34 ---Dacoity, common intention---Bail, grant of ---Further inquiry ---Delay of about twenty two hours in lodging the FIR ---Accused were not nominated in FIR ---No incriminating material was recovered from possession o f accused; no direct evidence was available against the accused and they were implicated on the disclosure of co -accused ---Evidentiary value of alleged disclosure could be seen and determined by Trial Court after recording of evidence---Continuous incarcer ation of accused would not serve any useful purpose because challan had been submitted in Trial Court ---In absence of any exceptional circumstances grant of bail to accused was a right ---Present case required further inquiry in terms of subsection (2) of S . 497, Cr.P.C.---Bail was granted accordingly. [Para. 6 of the judgment] Zafar Iqbal v. Muhammad Anwar and others 2009 SCMR 1488; Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708 and Tariq Bashir and 5 others v. The State PLD 1995 SC 34 r el. Sardar Ahmed Haleemi for Applicant. Saeed Ahmed Kakar for the State. Date of hearing: 24th May, 2017. ORDER ZAHEER -UD-DIN KAKAR, J. ---The applicants Abdul Rasheed, Kangar Khan and Saddam Hussain seek post -arrest bail in Crime No.23 of 2017 dated 10.3.2017, under sections 395, 34, P.P.C. lodged with City Police Station, Mastung.
2. Plea of post -arrest bail of the applicant did not find favour with the Sessions Judge, Mastung, who dismissed his bail application bearing No.37 of 2017, vide order dated 05.05.2017, hence this application.
3. Precisely stated the facts of the case are that on 9.3.2017, son of the complainant, namely Maqsood Ahmed, who is student of Madrasa Miftah -ul-Aloom, informed him (complainant Hafiz Muhammad Tayyab) that at about 3:40 p.m., when he was coming from Madrasa, near Killi Ghulam Prinz, six armed persons, ridding on three motorcycles, forcibly snatched his motor -cycle bearing Engine No.DSE1471826, Chassis No.DSC2472684, Model 2016 and made their escape good.
4. Learned couns el for the applicant has submitted that neither the names of the accused persons have been mentioned nor any description has been mentioned in the FIR. Learned counsel further submitted that as per FIR the alleged occurrence took place on 9.3.2017 at about 3:40 p.m. but the matter was reported to police on 10.3.2017 at about 2:30 p.m. after delay of about 21/22 hours without any explanation. Learned counsel added that there is no material available against the applicants to connect them with the commission of offence except disclosure of accused Kangar Khan. He submitted that this is a case where further inquiry is called for, thus, the applicants are entitled for grant of bail.
5. On the other hand, the learned State Counsel opposed the bail application and supported the impugned order.
6. I have heard the learned counsel for the parties and have gone through the available record. It is admitted position that the alleged occurrence took place on 9.3.2017 at about 3:40 p.m. whereas the FIR was lodged on 10.3.2017 at about 2:30 p.m. after a considerable delay of about 21/22 hours without any explanation, 21/22 hours delay in lodging of FIR provides sufficient time for deliberation and consultation, for which the complainant had given no explanation, which makes the case of the applicants one of further inquiry. Admittedly, the accused/applicants have not been nominated in the FIR; during investigation, no incriminating material was recovered from their possession; that there is no direct evidence available with the complainant against the applicants and they were implicated on the disclosure of co -accused Kangar Khan. The evidentiary status of the alleged disclosure can be seen and determined by the trial Court after recording of evidence. The detention of the ap plicant/accused incarceration will not serve any useful purpose because the challan has been submitted in the trial Court, but there is yet to be any progress, which accordingly, is at initial stage and as such, in absence of any exceptional circumstances, grant of bail to an accused is a right, which should be given to the accused and refusal is an exception, as held by the Hon'ble Supreme Court of Pakistan in the cases of Zafar Iqbal v. Muhammad Anwar and others (2009 SCMR 1488), Riaz Jafar Natiq v. Muham mad Nadeem Dar and others (2011 SCMR 1708) and Tariq Bashir and 5 others v. The State (PLD 1995 SC 34).
7. From perusal of the record of the case in hand, it appears that this case required further enquiry for the aforesaid reasons in terms of subsection ( 2) of section 497, Cr.P.C. Accordingly, applicants Abdul Rasheed, Kangar Khan and Saddam Hussain are admitted to bail, subject to furnishing bail bonds in the sum of Rs.2,00,000/ - (Rupees two lac) each and PR bond of like amount to the satisfaction of the Additional Registrar of this Court or the trial Court. The observations made hereinabove are of tentative in nature and shall have no bearing on merits of the case. WA/91/Bal. Bail granted.