PERVEZ ANJUM GHAURI vs STATE
The petitioner sought post-arrest bail in a case registered under Sections 302, 148, and 149 of the Pakistan Penal Code 1860, arising from a night-time fatal shooting during a land dispute between two rival groups where a cross-version was also presented and both sides were challaned. The core legal question was whether the petitioner was entitled to post-arrest bail given the cross-versions, undetermined aggression, and the nature of the evidence including a supplementary statement. The Lahore High Court held that where both parties have been challaned, the question of who was the aggressor is yet to be determined, and the case involves a night occurrence with an unspecified fatal shot and a contested supplementary statement, the matter falls under further inquiry. The court accepted the petition and admitted the petitioner to post-arrest bail, establishing the principle that post-arrest bail is warranted under Section 497(2) of the Code of Criminal Procedure 1898 in cross-version cases involving night occurrences where the identity of the actual assailant and the aggressor party require further inquiry.
- Whether post-arrest bail can be granted in a murder case where cross-versions have been submitted by both parties and it is yet to be determined who was the aggressor?
- Does a night-time occurrence involving an exchange of fire where the fatal shot is not specifically attributed in the FIR warrant further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Is an accused entitled to bail when his name appears only in a supplementary statement based on information derived from co-accused rather than direct observation?
- Section 302, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
Petitioner Pervez Anjum Ghauri through the instant petition has sought for post-arrest bail in Case FIR No, 229 dated 22.6.2003 u/S. 302/148/149 PPC registered with Police Station Saddar Gojra, District Toba Take Singh.
2. Briefly the prosecution case as per FIR is that on 22.6.2003 at about 3.30 a.m. on the dispute over 'possession of the land, the exchange of fires between two rival parties had taken place and in the same Muhammad Younas, the brother of the complainant had died.
3. It has been contended on his behalf that he has falsely been roped in; that it is a night occurrence and admittedly in the same there had been exchange of fires between the two rival groups over the possession of land and it is not known that as to whose fire had hit the deceased; that nobody has specifically been nominated as having fired at the deceased; that the complainant party collected the criminals and brought them to their village and had attack on his Dera; that the police record reveals that in fact the complainant party had initiated attack on his Dera and had resorted to firing there and in the same some fire had hit the deceased and due to the same his death had occurred; and that it is equally possible that as the complainant had intended to forcibly occupy their land and so in order to involve them had themselves done the deceased to death and instead have involved them in the case as in such an eventuality they could easily succeed in their design; that cross-version from their side had also been brought forth and the latest position is that the police have challaned both the side to Court and have opined that in fact the complainant party was the aggressor and therefore, it is a case of two versions and it is yet to be determined that as to who was aggressor and who aggressed upon; that he is behind the bars; and that he is previous non-convict.
4. Conversely, the learned counsel for the State assisted by the counsel for the complainant has opposed the petition on the ground that he is named in the FIR; that no doubt his name is not mentioned in the FIR as the person who had fired at the deceased but it so in the supplementary statement of the complainant and he thus is sufficiently connected with the offence; and that the offence falls within the prohibitory clause of Section 497 (1) Cr.P.C.
5. He, however, has conceded that both the parties have been challaned to the Court.
6. I have carefully considered the submissions made by both the sides with the help of available record.
7. As is obvious from the above position that the deceased had expired as a result of exchange of firing between the complainant and the accused's side on the dispute over the possession of the land.
8. The fact remains that the alleged incident had taken place in the Dera of the petitioner and it is also evident from the FIR that the main accused Rizwan Akbar had brought the deceased from the house of his in-laws in Chak No, 180-G.B. There has been placed on the file of this position some FIRs to show that the deceased was a criminal.
9. However, the fact also remains that it is a night occurrence. In the FIR it has not been specifically shown that whose fire had hit the deceased.
10. His name statedly has figured in the supplementary statement of the complainant as the person whose fire had hit the deceased. According to the same, it was on the telling of main accused Rizwan Akbar and others. It thus was not according to his direct knowledge or by any other person than the main accused Rizwan Akbar and his companions.
11. The fact also remains that the complainant had not seen the occurrence with his own eyes.
12. The question of evidentiary value of the supplementary statement is definitely to be gone into at the time of trial.
13. The fact also remains that the cross-version from his side has been brought forth before the police. Both the parties have been challaned to the Court. It, thus is also yet to be determined that as to who was aggressor or who aggressed upon.
14. In these circumstances the case against the petitioner has become one of further inquiry into his guilt and the same therefore, is covered under sub-section (2) of Section 497 Cr.P.C.
15.He is behind the bars and stated to be previous non-convict.
16.In these circumstances, I find that the case for his enlargement on bail has been made out.
The petition, therefore, is accepted and he is admitted to bail subject to his furnishing bail bonds in the sum of Rs, 1,00,000/- (Rupees one lac) with two sureties each in the like amount to the satisfaction of the learned trial Court.