2013 PLP 744 (YLR)

Muhammad Arshad, petitioner through Criminal Miscellaneous No.4362-B of 2011 and Wazir Ahmad and Abdul Sattar, petitioners through Writ Petition No.12928-B of 2011 seek post-arrest bail in case F.I.R. No.216 of 2011 dated 11-5-2011, offence under section 365-A, P.P.C. registered at Police Station Chowk Azam, District Layyah, through two separate petitions, which are outcome of one and the same F.I.R., therefore, are being decided through this single order.

2. According to the allegations as narrated in the F.I.R., on 18-3-2011 at about 10-00 p.m. complainant Manzoor Hussain along with his brother Zahore Hussain and other family members was available in his house. In the meanwhile, Zahore Hussain left the house, who did not come back. Complainant kept on searching him but in vain. Some of the accused persons were traced by the data of SIM used by Zahore Hussain, abductee. It is further alleged in the F.I.R. that on 6-5-2011 at about 4-50 p.m., Munir Ahmad, accused contacted complainant telephonically and required him to pay amount of Rs.5,00,000 as ransom Munir Ahmad, accused further told the complainant that in case of non-compliance of his direction Zahore Hussain, his brother would be murdered hence, instant F.I.R. was registered.

3. Learned counsel for petitioner Muhammad Arshad submits that instant F.I.R. was lodged with extra ordinary delay of more than two months; that petitioner was not nominated in the F.I.R.; that petitioner was implicated in this case on the basis of supplementary statement of the complainant recorded by the police on 8-7-2011 and in the said statement it has been alleged that one SIM, which was being used by Munir Ahmad, accused was issued in the name of Muhammad Arshad, petitioner. It has further been submitted by the learned counsel for the petitioner that in said statement of Manzoor Hussain, complainant and supplementary statements of Ejaz Hussain and Ghulam Hassan, P.Ws. recorded on aforementioned date it has been alleged by them that when they contacted Muhammad Arshad, petitioner, they identified that he (Muhammad Arshad, petitioner) is the same person who at the time of abduction of Zahore Hussain was seen with Munir Ahmad, accused; that these P.Ws. in their previous statements did not state that Muhammad Arshad, petitioner was seen by them along with Munir Ahmad, co-accused, therefore, no reliance can be placed on such statements; that petitioner was arrested in this case on 15-8-2011 and he is behind the bars since then and nothing was recovered from his possession during investigation, therefore, petitioner is entitled to be released on bail.

4. Learned counsel for petitioners Wazir Ahmad and Abdul Sattar contended that although both these petitioners were nominated in the F.I.R. but complainant has not mentioned any evidence on the basis of which both these petitioners were involved by him in the instant case; that on 20-5-2011 police recorded the statements of Allah Wasaya and Malik Kora and according to their statements they Contacted Wazir Ahmad and Abdul Sattar, petitioners, who confessed their guilt before them, which cannot be believed in any manner; that abductee was not recovered from the possession of the petitioners during the investigation; that both petitioners were arrested in June, 2011 and they are behind the bars for a period of more than 7-months without any legal evidence. Lastly, it has been contended that as Abdul Sattar, petitioner is brother and Wazir Ahmad, petitioner is father of Munir Ahmad, main accused in this case, therefore, petitioners have been falsely implicated in this case on the basis of mala fide, therefore, they are entitled to be released on bail.

5. Learned D.P.G. and learned counsel for the complainant have opposed these petitions on the grounds that Ahmad and Abdul Sattar, petitioners are nominated in the F.I.R. that there is evidence of extra-judicial confession against them; that on 20-5-2011 police also recorded the statement of Muhammad Ejaz and Ghulam Hassan, who implicated both petitioners in the commission of this offence; that Muhammad Arshad, petitioner was involved on the basis of supplementary statements of Manzoor Hussain, Ejaz Hussain and Ghulam Hassan recorded by the police on 8-7-2011; that there is sufficient incriminating evidence against the petitioners connecting them with the commission of this offence; that offence alleged against the petitioners comes within the purview of prohibitory clause of section 497, Cr.P.C., therefore, they are not entitled to be released on bail.

6. We have heard the arguments advanced by the learned counsel for parties and perused the record with care.

7. It has been noticed by us that this occurrence took place on 18-3-2011 at 10-00 p.m. whereas matter was reported to the police on 11-5-2011 with extraordinary delay of 1-month and 23-days. Although Abdul Sattar and Wazir Ahmad, petitioners are nominated in the F.I.R but complainant has not mentioned any evidence against both these petitioners regarding their involvement in the commission of this offence. On 20-5-2011 police recorded the statement of Allah Wasaya and Malik Kora, P.Ws. and according to their statements, they approached Wazir Ahmad and Abdul Sattar, petitioners who confessed their guilt before them. Perusal of statements of both these P.Ws. reveal that no date, time and place has been mentioned therein, when Wazir Ahmad and Abdul Sattar, petitioners allegedly confessed regarding their involvement in this case. Even otherwise prima facie there is evidence of joint extra-judicial confession against petitioners in the aforementioned statement, which is inadmissible in evidence. On 20-5-2011 police recorded the statements of Ghulam Hassan and Muhammad Ejaz and in their statements both these P.Ws. had stated that on 18-3-2011 at 10-30 p.m., at the time of occurrence, they saw that Wazir Ahmad, Munir Ahmad and Abdul Sattar were sitting on cots along with Zahore Hussain, abductee and were taking tea. Surprisingly both these P.Ws. are related with the complainant party but this fact has not been mentioned in the F.I.R., which was recorded with a considerable delay of about 2 months.

8. Now coming to the case of Muhammad Arshad, petitioner, it has been observed by us that he was not nominated in the F.I.R. Muhammad Arshad, petitioner was implicated by Manzoor Hussain, complainant and Ejaz Hussain and Ghulam Hassan, P.Ws. in their supplementary statements recorded by the police on 8-7-2011 after a period of 3-months and 20-days, wherein it has been alleged that SIM of Muhammad Arshad was being used by the accused Munir Ahmad but there was no evidence available on the record that it was in the knowledge of Muhammad Arshad, petitioner that his SIM was being used by Munir Ahmad, accused of this case. Surprisingly, in these supplementary statements all these three witnesses have stated that when they contacted with Muhammad Arshad, petitioner they identified him (Muhammad Arshad) that he was the same person, who was seen by them sitting with Munir Ahmad at the time of abduction. Perusal of statements of Ghulam Hassan and Muhammad Ejaz, recorded on 20-5-2011 reveals that Zahore Hussain, abductee was sitting along with Wazir Ahmad, Munir Ahmad and Abdul Sattar, accused persons. Nothing was recovered from the possession of the petitioners during investigation. Petitioners are behind the bars for a period of about 6-months.

9. For what has been discussed above, Criminal Miscellaneous No.4362-B of 2011 and Writ Petition No.12928-B of 2011 are accepted and Muhammad Arshad, Wazir Ahmad and Abdul Sattar, petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs. 2,00,000 each with one surety each in the like amount to the satisfaction of learned trial Court. MWA/M-41/L Bail granted.