MUHAMMAD TAHIR vs TARIQ PERVEZ and 2 others
This criminal petition was filed by the complainant seeking the cancellation of bail granted to the respondents by the Additional Sessions Judge, Kohat, in a case registered under Section 302/34 of the Pakistan Penal Code 1860. The core legal question was whether the bail granted to the respondents should be cancelled given the circumstances of the case. The High Court observed that the complainant did not nominate any accused in the initial F.I.R., but subsequently named the respondents in statements recorded under Section 161 and Section 164 of the Code of Criminal Procedure 1898. The Court held that these discrepancies created a case of further inquiry regarding the presence of the witnesses at the scene. Furthermore, there was no evidence that the respondents had misused the concession of bail or tampered with the prosecution's evidence. Consequently, the Court dismissed the petition, affirming that when reasonable doubt exists regarding an accused's participation or the truth of the prosecution's case, the accused should not be deprived of bail, and the discretion exercised by the lower court was neither arbitrary nor perverse.
- Does the absence of names in an F.I.R. followed by subsequent naming of accused in statements under Section 161 and 164 of the Code of Criminal Procedure 1898 constitute a case for further inquiry?
- What are the grounds required for the cancellation of bail once it has been granted by a competent court?
- Is an accused entitled to bail when there is reasonable doubt regarding their participation in the alleged crime?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
- Section 164, Code of Criminal Procedure 1898
' Having been involved in case registered vide F.I.R. No,820 dated 22-11-2002 under section 302/34, P.P.C. At Police Station Saddar Kohat, the accused-respondents Nos.1 and 2 applied for their release on bail in the Court of learned Judicial Magistrate, Kohat but their application was dismissed vide order, dated 6-5-2003. Thereafter, they moved the Court of learned Additional Sessions Judge, Kohat, their application was accepted vide order, dated 28-5-2003 and they were directed to be released on bail. The petitioner, who is complainant in the case has now moved this Court for cancellation of bail granted to respondents Nos.1 and 2.
2. On 22-11-2002 at 23-00 hours Muhammad Tahir at LMH, Kohat reported to the local police that at the time of occurrence he was present in his house in the meanwhile his two brothers Sabir Khan and Zahir Khan after offering their Tarveeh prayers came back to their house on scooter. They knocked the door and their mother Mst. Akhtar Bibi went to open the same. In the meanwhile indiscriminate firing started. The complainant was attracted to the spot where he saw his brother Sabir Khan and mother Mst. Akhtar Bibi were lying dead, while Zahir Khan his other brother was seriously injured due to the firing made by the accused. He was being taken to LMH, Kohat but while enroute to the hospital Zahir Khan also succumbed to his injuries. He charged nobody in the F.I.R.
But stated that he would charge the actual culprits on satisfaction. Muhammad Sajid was stated to have seen the occurrence.
3. I have heard Mr. Muhammad Amin Khattak Lachi, Advocate for the petitioner, Malik Fakhra Azam, Advocate for respondents Nos.1 and 2, Mr. Imtiaz Ali, Additional Advocate-General for the State and perused the record.
4. Admittedly no one was charged by the complainant in the F.I.R. But on the following day statement of the complainant under section 161, Cr.P.C. Was recorded wherein he charged five persons including respondents Nos.1 and 2 for committing the murder of his brothers and mother.
Not only statement of the complainant was recorded under section 164, Cr.P.C. On 27-11-2002 but statement of Muhammad Sajid, another brother was also recorded under section 164, Cr.P.C. On the same day. In their statements made by the complainant as well as Muhammad Sajid, both stated to have seen the occurrence, whereas in the F.I.R. They did not state to have seen the occurrence. The perusal of the F.I.R. Vis-a-vis the statements of complainant and Muhammad Sajid recorded under section 164, Cr.P.C. Led me to the conclusion that a case of further inquiry is made out to see as to whether the complainant as well as Muhammad Sajid were present on the spot at the time of occurrence or not. Whenever reasonable doubt arises with regard to participation of an accused person in the crime or about the truth/ probability of prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail. In such a situation, it would be better to keep the accused person on bail than in jail, during the trial.
5. There is no allegation either in the application or in the arguments of the learned counsel for the petitioner that the accused-respondents have misused the concession of bail by making some efforts to hamper investigation or to tamper with evidence or that they have used violence against prosecution witnesses.
6. The grounds given by the learned lower Court for granting bail to the accused-respondents are convincing and cogent. The same are neither fanciful arbitrary nor perverse warranting interference. Moreover, there are no extraordinary circumstances compelling this Court to cancel the bail granted by the competent Court of law. Resultantly, this bail cancellation application is dismissed.