ASGHAR ALI alias Achhu and 2 others vs THE STATE
This post-arrest bail petition was filed by three petitioners in a case registered under Sections 302, 396, 148, and 149 of the Pakistan Penal Code 1860, concerning the murder of the complainant's brother during an attempted dacoity. The core legal question was whether the petitioners were entitled to post-arrest bail under Section 497(2) of the Code of Criminal Procedure 1898 where they were unnamed in the FIR, not subjected to an identification parade, nominated through a supplementary statement after a delay of over two years, and connected only via recovery of weapons different from the weapon cited in the FIR. The Lahore High Court accepted the petition and granted bail. The Court held that nomination after an unexplained delay of more than two years, lack of identification proceedings, and the alleged recovery of weapons inconsistent with the firearm stated in the FIR rendered the petitioners' guilt a matter requiring further inquiry under Section 497(2), Cr.P.C., particularly as the petitioners were previous non-convicts.
- Does the nomination of unnamed accused persons through a supplementary statement recorded over two years after the incident make the case one of further inquiry under Section 497(2), Cr.P.C.?
- Whether the failure to hold an identification test for accused persons not nominated in the FIR warrants the grant of post-arrest bail?
- Can the recovery of weapons inconsistent with the weapon described in the FIR be sufficient on its own to disentitle an accused to bail?
- Section 302, Pakistan Penal Code 1860
- Section 396, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' Asghar Ali alias Acchu, Sajid alias Saju and Muhammad Yaseen, the petitioners through the instant petition have sought for post-arrest bail in Case F.I.R. No,497 dated 4-11-2000 under sections 302/396/148/149, P.P.C. Registered with Police Station, Khanqah Dogran, District She ikhupura .
2. Briefly the facts of the prosecution case as contained in the F.I.R. Are that on 4-11-2000 at about 1- 30 a.m. The complainant Haji Saeed-Ullah Khan along with his brothers Zafar Ullah Khan, Sher Khan and Mubashar Hassan on Truck No,2470-K Peshawar proceeded towards Lahore. The truck was driven by Zafar Ullah Khan. At about 4-00 a.m. They when reached bridge Mianwali Canal at Lahore Sargodha Road, all of a sudden five slim and smart persons armed with lethal weapons came in front of the truck. They signaled them to hault. Thereupon, Zafar Ullah Khan made slow the speed and then tried to accelerate the same. Thereupon, one of them of long face and smart body fired with 12 bore gun at him (Zafar Ullah Khan). The pellets hit on his face and neck. He was seriously wounded and succumbed to his injuries at the spot. The occurrence besides his ownself was witnessed by Sher Khan and Mubashar Hassan. The accused thereafter fled away from the scene.
3. It has been contended on their behalf that they have falsely been roped in; that they are not named in the F.I.R.; that they were not put to any identification test; that more than two years after the alleged incident the complainant had moved an application to the effect that he has come to know from reliable sources that the petitioners/accused had murdered his brother Zafar Ullah Khan in the attempt to commit dacoity; that there is no other evidence with the police on record to connect them with the crime alleged; that the alleged recovery of crime weapons is fake and planted one and even otherwise the same alone cannot connect them with the offence as the deceased statedly was fired at with 12 bore gun; that they are behind the bars; that so far neither complete or incomplete challan has been submitted in Court; and that they are previous non- convicts.
4. Conversely, the learned counsel for the State has opposed the petition on the ground that their names have figured in the supplementary statement of the complainant recorded on 27-1-2003; and that the recovery of crime weapons is also there to connect them with the crime.
5. I have carefully considered the submissions made by the learned counsel for the parties with the help of available record.
6. The fact remains that they are not named in the F.I.R. They admittedly were also not put to any identification test. The only material so far brought on record against them is the application made by the complainant to the police against them on 27-1-2003 and his supplementary of the same day in it's (application) line.
7. It may also be relevant to mention here that the said application and the supplementary statement were made about two years after the alleged incident.
8. The learned State counsel has also frankly conceded that except than this and the recovery of crime weapons, there is no other evidence on record against them.
9. The complainant statedly in the said application and his supplementary statement has said that he is sure that these accused have murdered his brother in the attempt to commit dacoity.
10. The alleged recovery is of weapons other than the gun. Here it may be worth mentioning that according to the F.I.R., the deceased had received injuries with 12 bore gun.
11. Hence, it is yet to see that if on the basis of such evidence alone, they ultimately can be held liable for the alleged offence or not. Their case, therefore, is one of further inquiry into their guilt and so, covered under subsection (2) of section 497, Cr.P.C.
12. They are behind the bars and stated to be previous non-convict.
13. In these circumstances, I find that case for their enlargement on bail has been made out. The petition therefore, is accepted and they are allowed bail provided they furnish bail bonds in the sum of Rs,1,00,000 (Rupees one lac) each with one surety each in the like amount to the satisfaction of the learned Sessions Judge, Sheikhupura/trial Court.