IRFAN ALI and 2 others vs THE STATE
This judgment disposes of two criminal bail applications seeking pre-arrest bail in respect of Crime No. 2 of 2007 registered at Police Station Tando Ghulam Ali under sections 382, 337-A(i), 337-F(i), 147, 148, 149, 427, and 504 of the Pakistan Penal Code 1860. The core legal question involves determining whether the applicants were entitled to pre-arrest bail given their varying degrees of involvement and the nature of evidence collected during the investigation. The Sindh High Court held that two applicants, whose names appeared in the First Information Report with specific roles corroborated by medical evidence and witness statements, were not entitled to bail, resulting in the dismissal of their application and recall of their interim pre-arrest bail. Conversely, the court confirmed the pre-arrest bail of the remaining three applicants whose names did not transpire in the First Information Report and whose cases fell within the scope of further inquiry under section 497(2) of the Code of Criminal Procedure 1898. The key principle laid down is that pre-arrest bail is to be refused where tentative assessment reveals reasonable grounds connecting the accused to the offense, while accused persons implicated merely at a later stage without primary incriminating material in the First Information Report are entitled to confirmation of bail for further inquiry.
- Are accused persons whose names do not appear in the First Information Report and who are implicated later entitled to confirmation of pre-arrest bail?
- Does medical evidence corroborating the specific head injuries assigned to an accused in the First Information Report preclude the grant of pre-arrest bail?
- Does a case where an accused is implicated solely on the basis of statements of co-accused attract the provisions of further inquiry under section 497(2) of the Code of Criminal Procedure 1898?
- Section 382, Pakistan Penal Code 1860
- Section 337-A(i), Pakistan Penal Code 1860
- Section 337-F(i), Pakistan Penal Code 1860
- Section 147, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 427, Pakistan Penal Code 1860
- Section 504, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
1. ' ABDUR RAHMAN FARUQ PIRZADA, J.--- By this single order, two bail applications viz. Criminal Bail Application No,S-321 of 2008 on behalf of applicants Irfan Ali, Qazi Akbar and Akram, and Criminal Bail Application No,S-343 of 2008 on behalf of applicants Zaheeruddin Babar and Ali Nawaz, are being disposed of, as both the applications pertain to same offence viz. Crime No,2 of 2007, Police Station Tando Ghulam Ali, under sections 382, 337-A(i), 337-F(i), 147, 148, 149, 427 and 504, P.P.C. All the applicants have sought pre-arrest bail in the present case. Their applications for bail before arrest were dismissed by learned Sessions Judge, Badin, vide order dated 9-4-2008, whereafter they have approached this Court. Initially, this Court, without dilating on the merits of the case, admitted the applicants to interim bail before arrest.
2. ' The F.I.R. Was lodged by complainant Pinyo at Police Station Tando Ghulam Ali on 18-1-2007 at 1200 hours. As briefly stated, the prosecution case is that the complainant is working as Chowkidar for the shops and cabins situated at Chamber Naka in Tano Ghulam Ali Town. On the night of incident, the complainant was standing on his duty near hotel Sharif Nizamani, when at about 3-00 am, five accused persons came in a gray coloured Cultus Car, and got down. The complainant identified two accused persons as Babar Ali and Ali Nawaz, whereas the other three persons were unknown, but they would be identified on sight; the accused persons were armed with Lathies.
3. Accused Banar Ali asked the complainant as to where the cabins owners were, on this the complainant told him that it was late hours in night and they were in their houses. Thereupon, accused Babar snatched the hatchet of complainant and inflicted a blow with backside of hatchet on his head, whereas the remaining accused persons also inflicted Lathi blows on his person. In the meantime accused Babar Ali and Ali Nawaz, by inflicting blows with back side of hatchet, broke open the locks of cabins of Syed Muhammad Shah and Mehboob Pathan, and robbed away the cash and Cigarettes from inside the cabins, and threw cans/packets on the road. The complainant raised cries, on which his brother Chowkidar Malook Bhatti and Syed Muhammad Shah came there and rescued him. Thereafter the accused persons went away in the car towards their village.
4. Subsequently, complainant went to Police Station from where he obtained the letter for his medical treatment and informed Incharge police officer that on the next date early in the morning, after consulting with his Nek Mards, he would initiate the proceedings. Subsequently, the complainant appeared at Police Station and lodged the F.I.R.
5. ' Learned counsel for applicants has contended that applicants have been falsely implicated in present case by the complainant party, due to previous political dispute. He has submitted that so far as three applicants/accused viz. Irfan Ali, Qazi Akbar and Akram are concerned, their names do not transpire in the F.I.R., nor their descriptions or features are given in the F.I.R. There is no cogent material on record to implicate the said three applicants in any manner whatsoever. Learned counsel has contended that even with regard to applicants Babar Ali and Ali Nawaz, the prosecution case is doubtful. No separate F.I.R. Was lodged in respect of the alleged theft from two cabins of Syed Muhammad Shah and Mehboob Pathan. He has further argued that none of the accused persons was armed with hatchet, but as per F.I.R. Applicants Babar snatched the hatchet from complainant himself, and allegedly inflicted a blow on his head. Learned counsel has submitted that further inquiry would be required in the case in order to establish the guilt of the applicants.
6. ' Learned State Counsel has conceded to grant of bail to three applicants Irfan Ali, Qazi Akbar and Akram, on the ground that their names do not transpire in the F.I.R., and that they were simply implicated at later stage, on the basis of statements of co-accused persons. However, learned State Counsel has opposed the bail application of two applicants namely Babar Ali and Ali Nawaz, as their names clearly transpire in the F.I.R. With specific roles of committing burglary and inflicting injuries to complainant, having been assigned to them. The medical certificate of complainant Pinyo also corroborates the version of complainant as given in the F.I.R.
7. ' I have considered the above submissions made by learned counsel for applicants and learned State counsel. As per F A.R. The names of two accused persons viz Babar Ali and Ali Nawaz are mentioned, whereas with regard to remaining three persons, it has been stated that they were unknown persons, and they would be identified on sight. As per F.I.R., it has been specifically alleged that the accused persons were armed with Lathies, and that applicant Babar Ali snatched the hatchet from the hands of complainant and inflicted a blow with blunt side of hatchet on his head, whereas the remaining accused persons gave Lathi blows to complainant. As stated in the F.I.R., applicants Babar Ali and Ali Nawaz, by way of giving blows with backside of hatchet, broke open the cabin locks of two cabins, and committed robbery of cash and cigarettes from inside the cabins. Complainant Pinyo was referred to the medical officer, who duly issued the medical certificate. As stated by learned State counsel, complainant Pinyo suffered total five injuries on his person, out of which two injuries were suffered by him on his head. One of the injuries on his head was declared as Shaja-e-Modiyah. It may be pertinent to note that as per F.I.R. Application Babar Ali was specifically assigned the role of inflicting blow with backside of hatchet on the head of complainant; as such, medical evidence prima facie corroborates the version of complainant as given in the F.I.R., P.W. Syed Muhammad Shah and Mehboob Pathan have supported the case of prosecution in their 161, Cr.P.C. Statements, in respect of the robbery committed from their respective cabins and the injuries suffered by complainant at the hands of accused persons. So far as the case of applicants Babar Ali and Ali Nawaz is concerned, I am inclined to agree with the contentions of learned State Counsel, to the effect that they are prima facie liable for the alleged offence. It cannot be asserted that complainant acted with any mala fide while registering the F.I.R.
8. Accordingly, the bail application of applicants Babar Ali and Ali Nawaz is dismissed, and the earlier interim order dated 14-5-2008 of this Court granting interim bail before arrest to the them, is hereby recalled.
9. So far as the case of applicants Irfan Ali, Qazi Akbar and Akram is concerned, they stand on different footing from the above named two accused persons, in that their names do not transpire in the F.I.R. As pointed out by learned State counsel, there is no cogent material on record to implicate these three applicants in the case. As per F.I.R., they were shown to be unknown persons, but the plaintiff would identify them on sight. According to learned State counsel, they were implicated at later stage on the basis of statements of co-accused only. In the given circumstances, the case of said three applicants may require further inquiry as envisaged under the provisions of section 497(2), Cr.P.C.
10. ' Accordingly the interim bail before arrest, earlier granted to applicants Irfan Ali, Qazi Akbar and Akram, is hereby confirmed on the same terms.
11. ' Both the above bail applications stand disposed of.