MUHAMMAD ASIF and another vs THE STATE
This matter arises from a post-arrest bail petition filed by Muhammad Asif and another seeking pre-trial release in case F.I.R. No. 386 of 2006 registered at Police Station Kotwali, District Jhang, for offences under sections 148, 337-A(i), 337-L(2), 380, and 149 of the Pakistan Penal Code 1860. The core legal question was whether the petitioners were entitled to post-arrest bail when named on the basis of speculation and guesswork without prior criminal record, recovery, or identification parade. The Lahore High Court held that the petitioners were apprehended on surmises and conjectures with no supporting criminal history or recoveries, making their case one of further inquiry under section 497(2) of the Code of Criminal Procedure 1898. The court laid down the principle that an accused cannot be retained in custody on mere fancies, hypotheses, or speculative naming by the complainant party without tangible corroborative material.
- Whether an accused named on the basis of speculation and guesswork is entitled to post-arrest bail?
- Does the absence of recoveries and a formal identification parade bring a case within the scope of further inquiry under section 497(2) of the Code of Criminal Procedure 1898?
- Can a person be kept in custody on the mere fancies and hypotheses of the complainant party?
- Section 148, Pakistan Penal Code 1860
- Section 337-A(i), Pakistan Penal Code 1860
- Section 337-L(2), Pakistan Penal Code 1860
- Section 380, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
' M. BILAL KHAN, J.--- Muhammad Asif and Muhammad Qasim alias Kashif sons of Muhammad Iqbal seek post-arrest bail in case F.I.R. No,386 of 2006 dated 1-8-2006 registered with Police Station Kotwali District Jhang for offences under sections 148, 337-A(i), 3.37-L(2), 380, 149, P.P.C.
2. The prosecution case as it unfolded in the F.I.R. Registered at the instance of Ijaz Hussain, complainant was that he was employed as watchman in the office of Seed Corporation Bhakkar Road; on 26-7-2006 at Isha time 7/8 persons who were armed with fire-arms forcibly entered the office by opening the gate; they overpowered the complainant and demanded keys of store and office; their conversation attracted Ch. Khalid Mehmood, Deputy Manager and Tariq Mehmood driver, who were sitting in a nearby room:, they too were overpowered by the accused who effected forcible entry in the office and demanded cash and keys; they started beating up Ch. Khalid Mehmood, Deputy Manager and Tariq Mehmood driver; on hue and cry raised by the complainant people living nearby were drawn to the spot whereupon the accused while brandishing their arms left the scene after removing mobile phone, a wrist watch and Rs,200.
3. According to the complainant on the basis of customary guesswork it was thought that Farhan Tahir, and the present petitioners Asif, Muhammad Qasim alias Kashif, were accused and they were identified by the complainant. However, rest of the four co accused could not be traced. Resultantly the instant F.I.R. Had been recorded.
4. The petitioners were arrested and their plea for post-arrest bail had initially been turned down by the learned Judicial Magistrate, Jhang on 6-12-2006,, his subsequent post-arrest bail application before the learned Additional Sessions Judge, Jhang met with the same fate and was dismissed on 4-1-2007.
5. I have heard the learned counsel for the petitioners and Mr. Muhammad Mazhar Sher Awan, the learned Additional Prosecutor-General Punjab and have pe. Used the record brought by Muhammad Khan Sub-Inspector Police Station Kotwali District Jhang.
6. It is the prosecution's own case that the petitioners had been hauled up on the basis of speculation and guesswo rk of the locals. The allegations in the F.I.R. That the petitioners belong to a notorious gang of thieves and dacoits is not borne out from the record.
7. The learned Additional Prosecutor-General Punjab after leafing through the record could not quote even a single case recorded against the present petitioners in the past. This clearly shows that prima facie the petitioners have been apprehended on account of surmises and conjectures pure and simple. No recovery has been effected from them. No formal identification parade had been got conducted: No one could be retained in custody on mere fancies and hypotheses of the complainant party. The case of the petitioners is pre-eminently one of further inquiry within the meanings of subsection (2) of section 497, Cr.P.C.
8. Resultantly this petition is allowed and the petitioners are admitted to post-arrest bail subject to their furnishing bail bonds in the sum of Rs,50,000 each with one surety each in the like amount to the satisfaction of learned trial Court.