ABDUL MAJEED vs STATE and another
This petition for post-arrest bail was filed by Abdul Majeed in a case registered under Sections 302/34 of the Pakistan Penal Code 1860. The prosecution alleged that the petitioner and his co-accused assaulted the deceased, with the petitioner specifically accused of firing a pistol shot hitting the deceased's left leg. The petitioner contended that he had been in jail since July 2008, no weapon was recovered from him, the injury attributed to him was on a non-vital part of the body, he was declared innocent during the police investigation, and the deceased did not implicate him in a dying declaration made before an Assistant Sub-Inspector. The Lahore High Court observed that the injury attributed to the petitioner was on a non-vital part, no weapon was recovered from him, the deceased's statement before the ASI did not name the petitioner, and the police had placed him in Column No. 2 of the challan. Consequently, the Court held that the case required further inquiry and allowed the post-arrest bail petition.
- Whether an accused is entitled to post-arrest bail if the injury attributed to him is on a non-vital part of the deceased's body and no weapon of offence is recovered from him?
- Can a statement made by a deceased before his death to a police officer, which does not implicate the accused, be considered for granting bail even if it was not formally made part of the case diaries?
- Does the placement of an accused's name in Column No. 2 of the report under Section 173 of the Code of Criminal Procedure 1898 make the case one of further inquiry for the purpose of bail?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 173, Code of Criminal Procedure 1898
ORDER
The petitioner seeks post arrest bail in case FIR No, 125 dated 8.6.2008 registered under Sections 302/34 of the PPC at Police Station Marot, District Bahawalnagar.
2. According to the FIR on 8.6.2008 at about 11.00 a.m., Abdul Majeed, petitioner and his co-accused Riaz Ahmad and Mulazam Hussain assaulted Muhammad Nawaz, son of the complainant. It is alleged in the FIR that Abdul Majeed fired with his pistol .12 bore, which hit on the left leg of Muhammad Nawaz whereas fire of Riaz Ahmad hit Muhammad Nawaz, on his testicles. Mulazam Hussain also started firing with his pistol. On seeing the witnesses the accused persons ran away.
Muhammad Nawaz injured was taken to a hospital at Khairpur Tamewali, however, the doctor referred him to B. V. Hospital, where he succumbed to the injuries.
3. The learned counsel for the petitioner contends that the petitioner is in jail since 2.7.2008; that nothing has been recovered from him; that the empties recovered from the place of occurrence matched with fire-arm recovered from co-accused Muhammad Riaz; that injuries attributed to, the petitioner are not on vital parts of the body of the deceased; that no fracture or dislocation is attributed to the petitioner; that the seat of injuries and nature of injuries are not ascertainable; that during the investigation the petitioner was found innocent by the police and discharge report was submitted, however, the same was disagreed by the learned Area Magistrate and that the deceased made a statement before his death in the hospital at Khairpur Tamewali before Shaukat Ali, ASI in which he did not implicate the petitioner. Therefore, the petitioner is entitled for concession of bail.
4. The learned Deputy Prosecutor-General assisted by the learned counsel for the complainant has opposed the grant of bail on the ground that the petitioner is nominated in the FIR; that the petitioner has actively participated in the occurrence; that specific role is attributed to him and that the statement made by the deceased before Shaukat Ali, ASI has no value because the same was not made part of the investigation proceedings.
5. Arguments heard and record perused.
6. It has been noticed that the petitioner is in jail since 2.7.2008 and is no more required for investigation purposes. The injuries attributed to the petitioner are not on the vital part of the body of the deceased. The alleged weapon of offence has not been recovered from the petitioner. The fact that the deceased made a statement immediately before his death before Shaukat Ali, ASI although not find mentioned in the case diaries yet the said statement is available on the police file. In the said statement the deceased had not named the petitioner as accused. The petitioner was also found innocent by the police during investigation and discharge report was prepared, however, the same was not agreed upon by the Magistrate. Therefore, police placed him in Column No 2 of the report under Section 173, Cr.P.C. Whatever has been said above makes the case, of the petitioner one of 'further inquiry'. Therefore, he is allowed bail provided he furnishes bail in the sum of Rs,1,00,000/- (One hundred thousand rupees) with one surety in the like amount to the satisfaction of the learned trial Court.