RAJAB ALI vs STATE
This criminal miscellaneous petition under the Code of Criminal Procedure 1898 seeks post-arrest bail for the petitioner, Rajab Ali, who was charged along with others in FIR No. 332 of 2006 registered under Sections 302, 337-A(i), 337-L(2), 109, and 34 of the Pakistan Penal Code 1860 at Police Station Garh, District Faisalabad. The core legal question was whether the petitioner was entitled to post-arrest bail where the prosecution case hinged upon a belated statement of a witness relying on information from a co-accused. The Lahore High Court held that since the prosecution case essentially relied on a co-accused and the petitioner's culpability and complicity required further inquiry at trial, the petitioner ought not to be kept in custody as a measure of punishment. The petition was consequently allowed and post-arrest bail was granted to the petitioner subject to furnishing appropriate security bonds, with tentative observations not to affect the trial.
- Whether post-arrest bail should be granted when the prosecution case hinges upon a belated statement implicating the accused through a co-accused?
- Can an accused be retained in custody as a measure of punishment pending the determination of culpability at trial?
- What is the evidentiary value of a statement made by a co-accused at the bail stage?
- Section 302, Pakistan Penal Code 1860
- Section 337-A(i), Pakistan Penal Code 1860
- Section 337-L(2), Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
ORDER
1. Rajab Ali son of Waryam, the petitioner, by filing this petition, seeks post-arrest bail in case FIR No, 332/06 dated 15.6.2006, registered with Police Station Garh, District Faisalabad, for offences under Sections 302/ 337-A(i), 337-L(2), 109/34 PPC.
2. The facts of this case have already been given in some detail in my order dated 9.4.2007 passed in Crl. Misc. No, 10333-B of 2006, while allowing post-arrest bail to the co-accused of the petitioner namely Muhammad Riaz, therefore, the same need not be reiterated here once again.
2. 3.The petitioner was arrested on 12.7.2006 and is in custody ever since. His plea for post-arrest bail did not find favour with the learned Addl. Sessions Judge, Tandlianwala, District Faisalabad, who turned down his application vide order dated 13.6.2007. Hence this petition.
3. 4.I have heard the learned counsel for the petitioner as also that learned Deputy Prosecutor- General and have perused the record.
4. 5.It has been observed that initially the petitioner was not named in the FIR but subsequently Mst.
5. Kausar Bibi daughter of Jahangir a real sister of the deceased had got her statement recorded under Section 161 Cr.P.C. on 27.6.2006 i,e, 12 days after the alleged occurrence, wherein she had stated that one Ali Sher son of Mian Garh had come to her place on 25.6.2005 and had informed her that the deceased Irshad Hussain had been murdered by Muhammad Arshad, Zawar Hussain and the present petitioner. The fatal shot was attributed by the said Ali Sher to the petitioner whereas Muhammad Arshad and Riaz had been assigned the role of causing injuries with the butt of .12 bore gun and a Sota respectively. It is not denied that the prosecution case essentially hinges upon the information furnished by Ali Sher who too has been arraigned as an accused. It is, therefore, yet to be seen as to what extent statement of a co-accused can be used against the petitioner. The culpability and the complicity of the petitioner will thus be determined at the stage of trial, till then the petitioner cannot be retained in custody as a measure of punishment.
6. 6.Resultantly this 'petition is allowed and the petitioner is admitted to post-arrest bail provided be furnishes bail bond in the sum of Rs, 50,000/- one surety, in the like amount to the satisfaction of the learned trial Court.
7. 7.Before parting with this order I would like to add that the observations made hereinabove are tentative in nature and are not designed to influence the course of trial in any manner whatsoever.
8. 8.Sardar Muhammad ASI, P.S. Garh, has been produced before the Court by Shahzad Akbar S.P.
9. Saddar Faisalabad. Sardar Muhammad ASI did not have any plausible explanation for his nonappearance before the Court especially so when he had been bound down by the Court.
10. Likewise Shahzad Akbar S.P. also could not explain non-compliances of this order by his subordinate in a convincing manner.
9. Be that as it may I was inclined to send Sardar Muhammad ASI to jail for committing contempt of this Court, but keeping in view. the sanctity of the month of Ramzan I am letting him off. However, I am putting the S.P. as also the ASI on notice that if such a conduct is repeated in future, strict action in accordance with law shall be taken.