MUHAMMAD TAYYAB KHAN and 2 others vs STATE
This matter concerns a petition for pre-arrest bail filed by the accused in a criminal case registered under Sections 336, 337-L(2), 337-A(i), 379, 148, and 149 of the Pakistan Penal Code 1860, arising from a dispute over the possession of a shop. The core legal question was whether the petitioners were entitled to the confirmation of pre-arrest bail given the conflicting versions of the occurrence and the police investigation report. The Court held that the petitioners were entitled to bail, observing that the investigation by the Assistant Superintendent of Police (ASP) cast doubt on the prosecution's narrative, particularly regarding the presence of one petitioner and the nature of the weapons used. The Court emphasized that while police opinions are not binding, they may be considered in determining whether a case for bail is made out. Finding that the occurrence was likely misrepresented and that the dispute was essentially civil in nature regarding property possession, the Court confirmed the ad-interim pre-arrest bail, ruling that the petitioners' false implication could not be ruled out.
- Is the opinion of the police regarding the innocence of an accused binding on the Court during bail proceedings?
- Can a court consider the findings of an investigation officer when determining whether to confirm pre-arrest bail?
- Does a dispute over the possession of property provide grounds for the possibility of false implication in a criminal case?
- Section 497, Code of Criminal Procedure 1898
- Section 498, Code of Criminal Procedure 1898
- Section 336, Pakistan Penal Code 1860
- Section 337-L(2), Pakistan Penal Code 1860
- Section 337-A(i), Pakistan Penal Code 1860
- Section 379, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
ORDER
Through this application under Sections 497/498 Cr.P.C. the petitioners seek bail before arrest in case FIR No, 441 dated 31.12.2004 registered under Sections 336/337-L(2)/337-A(i)/379/148/149 PPC at Police Station City Chichawatni District Sahiwal on the application of Khushi Muhammad.
2. The brief facts narrated in the FIR are that the complainant had obtained a Shop No. 17-A from Tehsil Municipal Administration Chichawatni on rent. Faryad Hussain was running the said shop: On 28.12.2004 at about 2.00 p.m. the complainant alongwith Faryad Hussain and Muhammad Iqbal was present on the said shop. All of a sudden Tayyab armed with mouser, Tahir armed with rifle and Iqbal armed with pistol came at the spot and asked Faryad to hand over the possession which was refused. Thereupon Muhammad Tayyab who was armed with mouser gave butt blow hitting on the upper lip of Faryad Hussain and two teeth were broken and jaw was also damaged.
Similarly, Tahir petitioner gave butt blow with his rifle which hit Faryad Hussain on his forehead, while Iqbal petitioner also gave butt blow with his pistol hitting on the head of Faryad Hussain whereupon he fell down. Unknown person also gave sota blow on the back of Faryad Hussain.
When complainant and Muhammad Iqbal came forward to rescue Faryad Hussain, the accused persons pointed fire-arms weapons towards them while raising threats of dire consequences if came near them. All the accused also dismantled the shop and took away certain articles of its construction material.
3. The motive behind the occurrence was alleged that the accused persons wanted to take physical possession of the shop through terrorism.
4. Learned counsel for, the petitioners contends that Muhammad Tayyab petitioner has'been found innocent by the police. It is next contended that the allegation against two other petitioners is that they caused injuries falling u/S. 337-L(2)/337-A(i) PPC, which offences are bailable. It is further contended that the petitioners have been falsely implicated in the present case.
5. Learned state counsel opposes the bail application.
6. I have heard the arguments of learned counsel for the parties and also perused the record. The dispute between the parties is regarding the possession of the disputed property. Both the parties claim their possession on the said property while the injuries attributed to Iqbal and Tahir petitioners are simple in mature. Moreover, ASP during the investigation came to the conclusion that Tayyab petitioner was not present at the spot. Though opinion of the police is not binding on the Courts yet it can be considered in proper cases and in the specific circumstances of the case for grant of bail to accused persons. In the final zimni ASP has given opinion that petitioner Tayyab was innocent and that no weapon was used as alleged by the complainant, but only kicks and fist blows were given by Iqbal and Tahir petitioners. As such to the extent of offence u/S. 336 PPC the prosecution story has become doubtful. Moreover, the complainant according to the ASP has also sworn affidavit in favour of the accused that he does not want to prosecute this case but the said affidavit cannot be considered unless the complainant appears before this Court. However, as the petitioners are not involved in any other case according to the police record and in the present case the occurrence had not taken place in the manner as narrated by the complainant, hence chances of false implication of the petitioners due to dispute over possession of the shop cannot be ruled out. Hence, this application is accepted and ad-interim pre-arrest bail already granted to the petitioners vide order dated 19.1.2005 is hereby confirmed subject to their furnishing fresh bail bonds in the sum of Rs. 1,00,000/- each with two sureties each in the like amount to the satisfaction of learned Ilaqa/Judicial magistrate.