TARIQ MAHMOOD alias NANNA vs THE STATE
This criminal matter arose out of a petition for post-arrest bail filed by Tariq Mahmood alias Nanna in connection with an FIR registered under Sections 302, 460, 380, and 412 of the Pakistan Penal Code 1860 at Police Station City Gojra, District Toba Tek Singh. The core legal question was whether the petitioner was entitled to bail under Section 497(2) of the Code of Criminal Procedure 1898 on the ground that his case required further inquiry. The Lahore High Court observed that the petitioner was not named in the initial FIR, nor was any suspicion cast on him initially. His implication surfaced approximately eight years after the alleged occurrence based on hearsay jail information, and the only role attributed to him was standing guard outside. Furthermore, the alleged extra-judicial confession relied upon by the prosecution was made more than seven years after the incident, rendering its evidentiary value subject to serious consideration. The High Court held that these circumstances rendered the petitioner's guilt a matter of further inquiry. Consequently, the bail petition was accepted, reaffirming that when a case falls under Section 497(2), Cr.P.C., bail is a matter of right and an accused cannot be detained unnecessarily.
- Whether an accused person not named in the FIR whose implication relies on an extra-judicial confession recorded years after the incident is entitled to bail under Section 497(2) of the Code of Criminal Procedure 1898?
- Does an alleged extra-judicial confession made more than seven years after an alleged offence render the case of the accused one of further inquiry?
- Whether an accused whose case falls within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898 is entitled to bail as of right rather than grace?
- Section 302, Pakistan Penal Code 1860
- Section 460, Pakistan Penal Code 1860
- Section 380, Pakistan Penal Code 1860
- Section 412, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' Petitioner Tariq Mahmood alias Nanna through the instant petition has sought for post-arrest bail in case F.I.R. No.325 dated 9-10-1996 under sections 302/460/380/412, P.P.C. Registered with Police Station City Gojra, District Toba Tek Singh.
2. Briefly the prosecution case is that on 9-10-1996 at about 3-00 a.m. The petitioner and others, while armed with .30 bore pistols, during the course of the dacoity in the house of the complainant had committed the Qatl-e-Amd of his deceased nephew Sarfraz and also took away the motorcycle belonging to them from the courtyard there.
3. After hearing the learned counsel for the parties and perusing the record, it has appeared that the petitioner is not named in the F.I.R. The complainant in the same has not laid suspicion of the commission of the offence against anyone. He, however, on 21-10-1996 has made supplementary statement before the police and in the same has mentioned that one Zafar Ali can give some information about the occurrence.
4. The record has also revealed that said Zafar Ali was joined in the investigation but he ultimately was discharged in the case as no intended clue could be had from him.
5. It has also been found that the complainant has made an application to the S.H.O. Concerned to the effect that one Iftikhar Ahmad has sent him message that he has information about the murder of the deceased and thereupon he along with other met him in the jail, who told them that one Ashiq Ali has furnished the information of the occurrence. Further according to the same, he along with his brother Abdul Ghafoor and Nisar Ahmad met Ashiq Ali in District Jail, Jhang on 21-3- 2003, who disclosed before them that he along with the petitioner and others have committed the said offence.
6. It, however, has appeared from his said application that the petitioner during the commission of the alleged offence has not done anything except that he had remained standing outside the house of the complainant to guard his companions. Anyway, this story, has come to the surface after about 8 years of the occurrence. He in the same has not been attributed any act qua the deceased.
7. It has also been found from the record that on 10-3-2004, two persons namely Abad Ali and Mukhtar Ahmad have made statement before the police that the petitioner has confessed his guilt before them.
8. This alleged extra-judicial confession of him, thus was more than 7 years after the incident.
9. The evidentiary value of his such belated alleged extra-judicial confession needs serious consideration.
10. All such facts makes his case as one of further inquiry into his guilt. The same, therefore, is covered under subsection (2) of section 497, Cr.P.C.
11. He is behind the bars. Although he was arrested about four months ago but his case when has been found to be one of further inquiry into his guilt, he then is entitled to bail as of right and not of grace and in such circumstances, can't be detained for a moment even unnecessarily.
12. I, therefore, accept this petition and admit him 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.
13. It is, however, clarified here that any observation made above shall not influence the mind of learned trial Court in any manner.