Muhammad Ashraf vs Nazir Ahmed, Etc.
This criminal petition was filed to challenge the order of the Additional Sessions Judge granting post-arrest bail to the respondent, who was accused of involvement in a criminal occurrence. The core legal question was whether the respondent was entitled to bail despite being named in the FIR with a specific role attributed to him, and whether the police's opinion regarding his absence from the crime scene was binding on the court. The High Court held that the respondent's bail should be recalled. The Court reasoned that the respondent was named in the FIR with a specific role, and there were multiple eyewitness accounts contradicting the police investigation's conclusion that he was absent. Furthermore, the statement of the respondent's wife, which supported his defense, was recorded more than two months after the incident, diminishing its reliability. The Court affirmed the principle that police opinion is not binding on the judiciary when determining bail, especially when the alleged offence falls within the prohibitory clause of Section 497(1) of the Code of Criminal Procedure 1898.
- Is the opinion of the police regarding an accused's presence at the scene of the crime binding on the court during bail proceedings?
- Can bail be cancelled if the accused is named in the FIR with a specific role attributed to him and the offence falls within the prohibitory clause of Section 497(1), Code of Criminal Procedure 1898?
- Does a delay of over two months in recording a witness statement affect its reliability in bail proceedings?
- Section 497(1), Code of Criminal Procedure 1898
- Section 109, Pakistan Penal Code 1860
JUDGMENT ORDER KH. MUHAMMAD SHARIF, J. - Learned counsel for the petitioner submits that respondent No. 1 is named in the FIR, that specific role was attributed to him, that ie had been allowed by the learned Addl. Sessions Judge merely on police opinion and that offence, falls within the ambit of Section 497(1), Cr.P.C. He is relied upon 2004 YLR 1515, 1999 P.Cr.L.J. 1260. 1998 P.Cr.L.J.
1652, 1996 P.Cr.L.J. 1004, 1995 P.Cr.L.J. 259, PLD 1994 Peshawar 268 and 2003 M LD 1466.
2. Learned counsel for respondent No. 1 submits that respondent was present at his duty at the relevant time of occurrence, that no recovery was effected from him, that three crime empties recovered from the spot matched with ( the pistol recovered on the pointation of Saif Ullah co- accused that he is a patient of Hepatitis, so his case is also covered by the first proviso of Section 497(1), Cr.P.C, that bail should not be withheld as punishment as the discretion has been used by the Court so that should not be cancelled, that statement of Ishrat Bibi alias Baby wife of the respondent, who was also injured in this case was also recorded by the police. He has relied upon 1987, P.Cr.L.J. 1388 and 2002 P.Cr.L.J, 1819.
3. Learned State counsel submits that respondent is only accused of Section 109, P.P.C, but there is no evidence on record against him in this regard.
4. Heard. Respondent is named in the FIR and specific role is attributed to him. Moreover, occurrence had taken place on 16.11.2005, but he joined the investigation for the first time on 30.12.2005 when police arrested him on spy information, when he was boarded in a wagon. During.
The course of investigation, though the police came to the conclusion that he was not present at the* spot but he is accused of abetment. As far as, insistence of learned counsel for the respondent that his wife Mst. Ishrat Bibi alias Baby gave a different version of the occurrence is concerned, I have gone through the statement of Mst. Ishrat Bibi, which was recorded on 6.2.2006 i.e. About 21/4 months after the occurrence. Opinion of the police is not binding on the Court. There are eye- witness accounts, not in the shape of one witness but in the shape of more than three witnesses. As the offence alleged against the respondent falls within the ambit of Section 497(1), Cr.P.C., therefore, this petition is accepted and the bail granted, to respondent No. 1 by learned Addl.
Sessions Judge vide his impugned order dated 6.3.2006 is hereby recalled.