Bahar Ali, Saeed Khan and Hazrat Wall were declined bail by Mr. Zafarullah Muhammad, learned Judicial Magistrate/Illaqa Qazi Dargai on 14.9.2007, and by Mr. Salahuddin, learned Additional Sessions Judge/Izafi Zilla Qazi Dargai, Malakand Agency, on 23.10.2007, in case FIR No, 93 dated 4.7.2007 under Sections 365-A/342/171/148/ 149 PPC rad with Section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979 of P.S. Sakhakot, Malakand, Now, the instant petition.
2. Accused petitioners and complainant submitted written arguments because they could not produce their counsels due to strike. Written arguments have been perused and placed on record.
Mr. Ubaidullah Anwar, learned AAG, argued the case for State. Record has been perused.
3. Concisely, according to prosecution case, car of Zahoor Abbas, a taxi driver, was hired on 22.6.07, by Naeem-ur-Rehman and Muhammad Sher Ali, at Mingora, Swat. They were intercepted at about 22.00 hours, at Dargai-Mardan road, by five persons in levy uniform, who arrested them on the pretext that they had driven over a person. They were taken to a canyon where heir valuables including cellular phone sets and money, in lacs of rupees, were allegedly sinatched. Their hands were chained and eyes were taped. They were confined' for ten days at a basement and for two days at another place, where from they fled away by availing an opportunity and on meeting the police party in the way, they reported the incident.
4. Complainant raised an objection that Section 365-A PPC falls in the exclusive jurisdiction of Anti- Terrorism Court and the order of Courts below on the bail applications are without jurisdictions. But, it is clearly mentioned in the impugned order dated 23.10.2007 that the relevant amendment has not been extended to the area to which this case pertains. No notification has been referred to in the complainant's written arguments to the contrary. So, the ground does not prevail.
5. Superficial permissible survey of record divulges that none has been charged by name' in the FIR recorded on 4.7.2007, for commission of the crime. First supplementary statement of complainant was recorded on 7.7.2007 (under Section 164 Cr.P.C.), the second, on 31.7.2007 (under. Section 161 Cr.P.C.), the third, on 1.8.2007 (under Section 164 Cr.P.C.) the fourth, on 24.8.2007 (under Section 161 Cr.P.C.) and the fifth on 27.8.2007 (under Section 164 Cr.P.C.). In these statements recorded with intervals, the complainant has described various events of the occurrence, naming different persons with their roles. The names of accused having come on record are, Yousaf, Faqir Taj, Rehmat Gul, Muhammad Zeb alias Bodas, Wali Muhammad, Muhammad Riaz, Younas, Ibrahim, Khadi Muhammad, Anwarzada, Mushtaq, Hazratwali, Bahar and Saeed, the later three being the accused petitioners herein, who were named in the last statement.
6. Learned AAG vehemently resisted this bail application on the ground of heinousness of crime, difficulties in detection of perpetrators of crime, non-cooperation of civil society to stand as witnesses in tailoring the prosecution case with admissible circumstantial evidence, and highlighted the need of curbing the increasing highway robberies, kidnappings and abductions for ransom, by stretching law of bail against the accused, stiffly.
7. I have adverted over his points. It is settled principle of administration of criminal justice that heinous nature of an alleged crime, alone, can never be a hauler to expose an accused to advertises, because in all eventualities, presumption of innocence of accused is enormously paramount. The pointed out difficulties faced by investigators of crimes of highway robberies, kidnappings and abductions for ransom, that have emerge as menace in majority of Districts of NWFP province, may be true and correct, but should fundamental notions of justice be disfigured on these grounds? The rational answer can never be in affirmative, because innocent persons, if involved, the only rescuer for him is the golden principle of innocence of accused, and proof against him beyond shadow of doubt.
8. Here I deem it appropriate to mention that the complainant and the investigator of this case constantly and considerably remained involved in zealous and dynamic activity to expose the wrong doers in the case in hand, but to bring on record tangible evidence to connect an accused with the alleged part of his crime is also an essential elementary duty of the investigator. I am alive to the fact that both of them are not law experts. It may be true that they may not be aware of the required scale of proof, but it is equally true that lack of legal knowledge of complainant or scanty legal knowledge of investigation officer cannot be a convincing excuse to hamper application of cannos of safe administration of justice, in criminal cases. In such circumstances, prosecution may sometime by the sufferer, but the robe of justice can allow no Court to forget the principles relating to innocence of accused, till his guilt is proved beyond doubt, and only in the case of availability of such a standard of proof, the heinousness of crime may add more in his sentence, at the end, of trial, if required in the interest of justice, keeping in view the facts and circumstances of a particular case.
9. At this juncture I would like to emphasize that the State is neither ignorant nor indifferent of this situation. NWFP Prosecution Service (Constitution, Functions and Powers) Act, 2005 (Act I of 2005) has been promulgated on 29th January, 2005 to reorganize and establish a "Prosecution Institution" for achieving in speedy justice and matters ancillary or incidental thereto. Its Chapter II, pertains to establishment of Prosecution Institution and Chapter III enunciates a workable mechanism to improve investigation system as a whole, as well as investigation of individual cases at district level. Section 8 of the Act is relevant to this discussion. It is reproduced below for ready reference: "S. 8. Reports and Guideline.
(1) The District Public Prosecutor shall keep the Head of Investigation informed about the outcome of prosecution of cases.
(2) On registration of the First Investigation Report the Station House Officer of police station concerned shall send a copy of the First Investigation Report to the District Public Prosecutor/Public Prosecutor of the District who on receipt shall inspect the same and issue necessary directions to the Head of Investigation, and shall also inspect, scrutinize and supervise the whole Investigation process of various cases so registered in the District.
(3) Officer-in-Charge of a police station shall report to the District Public Prosecutor cases of all persons arrested without warrant irrespective of the fact whether such persons have been admitted to bail or not.
(4) During the investigation whenever any legal guidance/ opinion is required by the' Head of Investigation, the same shall be sought from the District Public Prosecutor/Public Prosecutor, and the guidance or opinion so given shall be followed.
(5) On the request of Head of Investigation, the District Public Prosecutor shall tender such advice on matters pertaining to investigation, prosecution and any matter ancillary to these matters, as may be necessary for effective prosecution.
(6) In cases in which the prosecution of an offence results in acquittal of the accused or in cases when the punishment of offence does not appear to be commensurate with the offence, the District Public Prosecutor shall submit a report to Government in writing giving reasons therefor.
(7) At the end of each year, the Director-General Prosecution shall submit to Government a report on the discharge of functions of the institution during the year. Government shall lay before the Assembly a copy of the report received from the Director-General Prosecution.
(8) The Director-General Prosecution shall issue guidelines for the prosecutors on general principles for effective prosecution of the cases."
10. It is reiterated that Section 8(2) of the Act makes a SHO bound to send copy of each FIR of his police station to District Public Prosecutor and it bestows an extraordinary responsibility on District Public Prosecutor to inspect FIRs, and where every necessary, to suo motu issue necessary guidelines to Investigation Officer and that would be in the shape of "Direction", to the Head of Investigation. He can also inspect, scrutinize and supervise the whole Investigation Process of the cases. While reporting to Government, under Section 8(6) of the Act, the District Public Prosecutor can highlight lapses of the Investigation Officer in acute cases of negligence for appropriate departmental level punitive action to promote sense of responsibility and accountability in the Investigation Officers.
11. The creation of the officer of "Chief Prosecutor" in the province, designated as "Director General of Prosecution", under Section 3 of the Act, with his team of Deputy and Assistant Directors, is not a meaningless scheme. Public exchequer has been burdened to achieve for reaching public welfare aims and objects of improving investigation and removing difficulties of Investigation Officers through appropriate legal guidance at apt time, who are normally expected to be unaware of legal intricacies, interpretations, as well as guidelines given by the Superior Courts in various rulings about the standards and required strengths of proof, in order to resist defense attacks, successfully. The Director-General is now expected to prove worth of "Prosecution Institution" in the minimum possible time by attaining the target of improving standard of investigation in all cases, and especially in the cases like one in hand, by motivating, launching and promoting endeavors through District Public Prosecutors, with a well oriented check and balance system, so that the cases may successfully face all kinds of scrutinies on the dissection table of qualified and experienced laws experts, in Courts of law.
12.A glance over, the case in hand would show that Zahoor Abbas (victim/complainant) has stated in his statement dated 27.8.2007 that he and his companions were kept in the basement of the house of accused petitioner Hazrat Wali, who used to feed them, and accused petitioners Bahar and Saeed used to guard them.
13.Whether the complainant, after seven weeks of the occurrence, correctly nominated the accused petitioners, was a curious query for the investigator. But he has not arranged their identification parade. Proof about ownership of the house pointed out by the complainant where he and other abductees were confined in the basement, is also yet to be brought on record. There is no judicial or extrajudicial confession of the accused petitioners. Nothing incriminating has been recovered on pointing out by the accused petitioners nor were abdcutees recovered from their custody. So, the reasonable grounds for believing that the accused petitioners are guilty of non- bailable offence, as envisaged in proviso to Section.21-D (2) of the Anti-Terrorism Act, 1997 are lacking. No other barring elements indicated in clauses (3) and (4) of Section 21-D of the Act (ibid) has been pointed out in the written arguments of complainant, nor argued by learned DAG, for the state.
14.I am therefore constrained to accept bail application of all the three accused petitioners and allow them to be released on bail if they furnish bail bond in the sum of Rs, 2,00,000/- each, with two local sureties who must be mean of means, each in the like amount, to the satisfaction of Illaqa Judicial Magistrate/Magistrate on Duty.
15.Copy of this judgment be sent to Secretary Home Department, Government of NWFP, for sensitizing Director General Prosecution, about his expected role in improvement of investigation of criminal cases.