Arbab Muhammad Tahir, J.- Through this petition, the petitioner (Muhammad Waris son of Muhammad Yaqoob) has prayed for post-arrest bail in case F.I.R No.56, dated 14-09-2022, under Section 392, 411 PPC, Police Station, Sangjani, Islamabad.
2. Succinctly, the facts are, that the on written complaint of Abdul Rehman the instant criminal case was registered, wherein he alleged that on 13-09-2022, at about 10:10 p.m., when he was accompanying his mother, two unknown persons, riding Honda-125 motorcycle bearing registration No. RIN-2564, snatched mobile phone i.e. I-Phone 11 from the complainant on gunpoint.
The petitioner was subsequently arrested in case FIR No.78/2022 registered at Police Station Sangjani and during interrogation he disclosed his involvement in the commission of the offence reported in the instant criminal case.
3. Learned counsel contends that; the petitioner is innocent and has falsely been implicated in the instant case with malafide intention and ulterior motive; the recovery of snatched mobile phone is planted one; nothing has been recovered from the possession of the petitioner; delay in the identification parade makes the case of the petitioner as of further inquiry; the petitioner is not nominated in the FIR; that offence under Sections 392 and 411 PPC do not fall within the ambit of prohibitory clause of Section 497 Cr.P.C; that petitioner is behind the bars since his arrest and that he is not a previous convict and is no more required for further investigation therefore, entitled to the concession of post arrest bail.
4. On the other hand, learned State Counsel opposed the bail petition, inter alia, that the petitioner is involved in the commission of offence; snatched mobile phone was recovered on the pointation of the petitioner; the petitioner has been identified during identification parade by the complainant; the petitioner is connected with the commission of offence; the offence is heinous and against the society; the petitioner is not entitled to the concession of bail.
5. Arguments heard, record perused.
6. Record transpires that during investigation in another case, petitioner had disclosed about the commission of the offence alleged in the instant criminal case. It is also a matter of record that the petitioner was subjected to test of identification parade wherein the complainant has correctly identified him.
7. Record further reveals that petitioner is also involved in the following criminal cases:- S.No. FIR No. Offences Police Station
1. 78/22 13, A.O., 1965 Sangjani, Islamabad
2. 56/22 392, 411 PPC Sangjani, Islamabad
3. 14/18 381-A, 411 PPC P.S. Kundyan, Mianwali
4. 324/17 381-A PPC P.S. Kundyan, Mianwali
5. 372/17 381-A, 411 PPC P.S. Kundyan, Mianwali
6. 381/17 381-A 411 PPC P.S. Kundyan, Mianwali
7. 428/17 381-A, 411 PPC P.S. Kundyan, Mianwali
8. 292/17 381-A PPC P.S. Kundyan, Mianwali
8. In the instant case, the petitioner has duly been identified by the complainant during the identification parade. The mobile phone (I-phone 11) snatched from the complainant was recovered at the pointation of the petitioner. Reasonable grounds exist to believe that the accused is involved in the commission of offence. The record shows that the petitioner is habitual of repeating the offence. In the instant case, if the accused is released on bail, there is likelihood that he will repeat the offence. Furthermore, the offence alleged is not only heinous but is an offence against the society and cannot be taken lightly. The modus operandi allegedly adopted by the petitioner, prima facie, reflects his evil designs and brings his case within the exception where possibility of repetition of offence cannot be ruled out.
9. In presence of sufficient tangible evidence, which connects the petitioner with the commission of offence, the concession of post arrest bail cannot be extended to the petitioner. Consequently, instant bail petition is dismissed. Needless to mention that observations made hereinabove are tentative in nature which shall not prejudice the case of the parties during trial.
10. Before parting with this order, this Court considers it appropriate to highlight the statutory mechanism to deal with habitual offenders. Section 110 of the Code of Criminal Procedure, 1898 (the "Cr.P.C.") provides that whenever a Magistrate of the First Class receives information that, any person within the local limits of his jurisdiction is by habit robber, house-breaker, thief or forger, receiver of stolen property, protects or harbours thieves and aids in the concealment of stolen property, habitually commits or attempts to commit, or abets the commission of the offence of kidnaping, abduction, extortion, cheating or mischief or any offence punishable under chapter XII of PPC, etc., such Magistrate may, require such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behavior for such period not exceeding three years, as the Magistrate thinks fit. The law governing the criminal procedure envisages a mechanism to prevent habitual offenders from repeating the offence i.e. (i) their selective incapacitation, (ii) general deterrence and, (iii) preventive measures.
11. Section 110 Cr.P.C. provides for preventive measures which make it more difficult for habitual offenders to repeat the offence. The offences mentioned in section 110 Cr.P.C. are heinous.
Regardless of the fact that individuals are direct victims, the offences mentioned in section 110 Cr.P.C. negatively impact the perception of safety in the society, besides limiting social functioning and community cohesion. Such crimes affect the society in many ways i.e. it results in an increase in the cost of living in the society, cost of individual safety to prevent crime, cost of investigation, cost of prosecution, etc., besides loss of lives and property as a result of the crime. The effective and meaningful enforcement of section 110 Cr.P.C. is in the interest of the general public and the society.
The expressions "habit" and "habitually" used in section 110 have not been defined in the Cr.P.C. The prime object of the said provision is ensuring good behavior of the person liable to proceedings thereunder to serve larger public interest i.e. safety and security. The authorities are, therefore, expected to exercise powers under section 110 Cr.P.C. with great caution. Bald allegations that a person by habit or habitually commits the offences highlighted in the said provision are not sufficient to proceed under section 110 Cr.P.C. The allegation must substantially be supported by cogent evidence. Such powers, therefore, cannot be exercised as a tool of oppression against innocent, poor and helpless people.
13. Section 75 of the Pakistan Penal Code, 1860 (the "PPC") makes the accused of an offence mentioned in Chapter XII or XVII of PPC liable to enhanced punishment, if he has earlier been convicted of the offences mentioned in the said chapters. Section 221(7) of Cr.P.C., therefore, provides if the accused is previously convicted of any offence and by reason of such previous conviction is liable to enhanced punishment and it is intended to prove such previous conviction for the purpose of affecting the punishment which the court may think fit to award for the subsequent offence, the fact, date and place of previous conviction shall be stated in the charge and if such statement has been omitted in the charge, the court may add it any time before the sentence is passed. The onus to prove previous conviction of an accused lies on the prosecution. It is, therefore, the duty of the Investigating Officer to investigate the previous conviction of the person accused of an offence mentioned in Chapter XII or XVII of PPC, to collect evidence regarding previous conviction of the accused and produce before the trial court. Section 221(7) of Cr.P.C. further caters for a situation where the fact of previous conviction has been omitted in the charge.
The fact of previous conviction can subsequently be added to the charge at any time before the sentence is passed. The duty of the Investigating Officer is, therefore, onerous. He has to work round the clock to follow and fetch the record of previous conviction(s) of a person accused of an offence mentioned in section 75 PPC.
14. The Islamabad Police can achieve the object of containing and elimination of the evils in the society by maintaining the Criminal Record of Offenders in the manner adopted by other provinces. This Court has observed in many criminal cases that a one pager list prepared by the Islamabad Police containing meager information relating to previous criminal cases of the accused is termed as the Criminal Record of Offenders, which is not sufficient to achieve the statutory object behind maintaining such record. The result of maintaining Criminal Record of Offenders is linked to safety of lives and property of citizens, therefore, the police officials are expected to exercise due diligence and avoid dealing the same mechanically.
15. This Court in another case i.e. Crl. Misc. No.1500/2022 titled "Abdul Rehman v. The State, etc." has observed that.- "However, the police record appears to be a tagged bundle of irregular papers, kept without any brief, index and chronology of events, which instead of rendering any help, confuses the Court.
Furthermore, the Investigating Officers do not append alongwith the record the Criminal Record of Offenders, which is again a serious flaw because many habitual offenders take benefit of claiming to be the first offenders. Some of the Investigating Officers appear clueless about the facts and investigation of the case and merely attend the Court carrying police record to be produced in the Court. The onus equally lies on the prosecutors (by whatever name called) appearing for the State under section 493 of Cr.P.C. Prosecution service is an important component of the criminal justice system. It is alarming that there exist no specific statutory instrument (as are enforced in other Provinces) prescribing the duties of the prosecutors in the Islamabad Capital Territory.
The Court while considering and deciding the question of bail is dealing with liberty of an accused.
While deciding such delicate question, the Court expects accurate and calculated response from the side of the prosecution as irresponsible and inaccurate response or improper assistance from the side of the prosecution can jeopardize rights of either of the parties to the proceedings, besides exposing the police officials to proceedings under the laws of discipline.
16. Besides being highlighted several times, no one in the police hierarchy bothers to check the above omissions of police officials. The actual cause is absence of an active accountability mechanism. The State Counsels, who are appearing before this Court are powerless to initiate action against those police officials who fail to brief them before they tender appearance before Courts in a criminal case. The non-availability of the duly appointed career prosecutors in the Islamabad Capital Territory has put the criminal justice system at stake. The Court has been informed that only nine prosecutors including the District Public Prosecutors are working in the Islamabad Capital Territory against 25 Police Stations. Besides appearing before the Courts, they also scrutinize the reports under section 173 Cr.P.C. forwarded by the concerned Sub-Divisional Police Officers. It is alarming that that there exists no legislative enactment in the Islamabad Capital Territory relating to the prosecution department. The prosecution department is almost non-existent, whereas, the investigating agency is reluctant to render proper assistance to the Courts and these two are the main reasons for delay in adjudication of criminal cases.
17. For what has been discussed above, it is directed that.- (i). The Islamabad Capital Territory Police shall devise a mechanism to effectively and meaningfully enforce the provisions of section 110 of Cr.P.C. so as to achieve its object.
(ii). The Islamabad Capital Territory Police shall issue guidelines to the Investigating Officers to investigate previous convictions of persons accused of an offence mentioned in Chapter XII or XVII of PPC.
(iii). The learned Advocate General and the District Public Prosecutor, Islamabad Capital Territory shall ensure that while examining the reports under section 173 of Cr.P.C., involving the offences mentioned in Chapter XII or XVII of PPC, the fact of previous conviction/criminal history of the person involved in such offences is investigated and the case is properly documented. The learned Judicial Magistrates taking cognizance of the matter under section 190 of Cr.P.C. shall also exercise due diligence in this regard.
(iv). The Islamabad Capital Territory Police is directed to effectively and meaningfully maintain the Criminal Record of Offenders and assist the Courts in the light thereof while dealing with criminal cases.
(v). The SOPs formulated by the Islamabad Capital Territory Police in compliance with order passed in Crl. Misc. No.1500/2022 are directed to be implemented in letter and spirit. The said SOPs lack the forum of accountability of delinquent police officials on reference of the Court. The Inspector General of Police is, therefore, directed to nominate a focal person responsible to receive references of the Courts as well as the learned Advocate General and learned District Public Prosecutor, Islamabad Capital Territory against the delinquent police officials.
18. The office is directed to send copy of this order to learned Sessions Judges, East and West Divisions, Inspector General of Police, learned Advocate General and District Public Prosecutor, Islamabad Capital Territory. The Inspector General of Police is directed to submit a report on the steps taken in compliance with the directions contained in paragraph 17 above for perusal in chambers within one month after receiving a certified copy of this order.