NISAR AHMAD alias Shari and another vs THE STATE
This matter concerns a petition for post-arrest bail filed by two accused persons, Nisar Ahmad and Mushtaq Ahmad, who were charged under Section 302 read with Section 34 of the Pakistan Penal Code 1860 for the murder of Nazir Hussain. The core legal question was whether the accused were entitled to bail given that five successive police investigations had declared them innocent and recommended their discharge, despite the complainant's private complaint and the prosecution's argument that the accused were named in the FIR and the occurrence was in broad daylight. The Court held that the accused were entitled to bail. The ratio of the decision is that where multiple independent police investigations consistently find the accused innocent and recommend discharge based on material evidence, the case falls within the scope of Section 497(2) of the Code of Criminal Procedure 1898, necessitating further inquiry into the guilt of the accused. The Court established that while police opinions on innocence are not binding on the judiciary, they constitute a relevant circumstance to be weighed when determining bail eligibility.
- Does a consistent finding of innocence by multiple police officers during investigation constitute grounds for further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Is the opinion of the police regarding the innocence of an accused binding upon the High Court when considering a bail petition?
- Can bail be granted to an accused person if they have been named in the FIR but subsequently declared innocent in five successive police investigations?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
' Petitioners Nisar Ahmad alias Shari and Mushtaq alias Bhola through the instant petition have sought for post-arrest bail in case F.I.R. No.522 dated 9-8-2003 under section 302 read with section 34, P.P.C. Registered with Police Station Sadar, Kasur.
2. Briefly the prosecution case as per F.I.R. Is that on 9-8-2003 at about 8-30 a.m. Nisar Ahmad alias Shari (petitioner No.1), Mushtaq Ahmad alias Bhola (petitioner No.2) Ishaq, Tufail alias Dogar armed with lethal weapons on the Lalkara of Muhammad Ishaq have committed the Qatl-e-Amd of the complainant's brother Nazir Hussain. Nisar Ahmad alias Shari had fired with rifle hitting on his thigh above the right knee. Mushtaq Ahmad had fired with rifle hitting on his male organ. Ishaq and Muhammad Tufail remained raising Lalkaras and firing indiscriminately at him when he was lying on the ground.
3. The motive behind the occurrence is previous grudge between the parties and also on account of pursuing of two criminal cases of the complainant party.
4. It has been contended on their behalf that they have falsely been roped in; that during the four successive investigations they were declared innocent and then ultimately on the order of the DIG, Lahore the investigation was entrusted to the DPO, Lahore who expressed similar opinion regarding them and he directed the local police to prepare the report for their discharge in the case and it was prepared but the same was not agreed to by the learned Magistrate concerned; and that due to the findings of their innocence in the consecutive five investigations, their case has become one of further inquiry into their guilt and in this regard reliance has been placed upon the cases of Kalu and others v. State (PLJ 1999 Cr.0 Lahore 200) and Sher Muhammad and 2 others v. The State and 4 others (1994 SCM R 549); and that they are behind the bars and previous non-convicts.
5. Conversely the leaned State Counsel assisted by the learned counsel for the complainant has opposed the petition on the ground that they are named in the F.I.R.; that it was a broad-daylight occurrence; that the eye-witnesses have supported the prosecution version completely; that the police opinion regarding their innocence is mainlybased upon the statement of two persons namely Muhammad Jamil and Niaz Ahmad 'and alone on the basis of the same when there was ample material on the record to link them up with the allegation against them, they could not be declared innocent and so they are not entitled to any indulgence by this Court and in this regard reference has been made to the cases of Aitbar Khan and another v. The State (1977 PCr.LJ Lah. 114) and Liaqat Ali v. The State (PLD 1994 Supreme Court 172): and that the complainant having felt himself aggrieved of the findings of their innocence recorded by the different police officers had brought private complaint in which they have been summoned and this also suggests that there exists prima facie case against them.
6. I have carefully considered the submissions made by the learned 'counsel for the parties with the help of the available record.
7. There is no denying the fact that the petitioners during the investigation by the five different police officers have been declared innocent in the case. It has been found that in these investigations, it came to light that the deceased was murdered by some unknown persons during the dacoity.
8. It has also been found from the police record that DPO, Kasur on the conclusion of the investigation at his end has directed the S.H.O. Concerned to prepare report for their discharge from the case and it accordingly was prepared though not agreed to by the learned Magistrate concerned. There when is available the opinion of five different police officers in the investigation of their innocence in the case and ultimately the report for their discharge from the case had been brought forth before the Court, it appears that there is no reason to believe that they have committed a non-cognizable offence and rather there is ground for further inquiry into their guilt, particularly when such opinion has been based upon the sound material available on the .Record.
It was not only on the basis of statement of Muhammad Jamil and Niaz Ahmad but also of the other persons during the investigation. So, their case amply falls within the purview of subsection
(2) of section 497, Cr.P.C. However, it may be mentioned here that though opinion of the police is not binding upon this Court but still it is a relevant circumstance to be taken into consideration while deciding the question of grant or otherwise of bail to them. In this regard reliance is placed upon the cases of Kalu and others v. State (PL,J 1999 Cr.LJ Lah. 200) and Sher Muhammad and 2 others v. The State and 4 others (1994 SCM R 549).
9. As regard the case-law referred to by the side of the prosecution, the same is not aptly applicable to the facts and circumstances of the case. In the case of Liaqat Ali v. The State (PLD 1994 SC 172), the opinion of innocence of the accused was expressed by two Investigating Officers and it was merely on the oral testimony ofcertain defence witnesses. In the instant case, the position is somewhat different inasmuch as that such opinion has been expressed by the five police officers of the different ranks including the one DPO and ultimately the report for their discharge from the case was prepared though it was not agreed to by the learned Magistrate concerned. In the case of Aitbar Khan and another v.The State (1977 PCr.LJ 114 Lahore).The bail was declined to the petitioners/accused mainly on the reason that the finding of the petitioners/accused therein was expressed by one police officer though affirmed by his supervisory officers. In the instant case, the position is different as indicated above.
10. It may also be mentioned here that precedent in a criminal case will be applicable only when it will be on fours to it.
11. In these circumstances, I find them entitled to hail. The petition therefore, is accepted and they are admitted to bail subject to their furnishing of bail bonds in the sum of Rs. I ,00,000 (Rupees one
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