MUHAMMAD MUSHTAQ vs THE STATE
This matter concerns a post-arrest bail application filed by the petitioner, Muhammad Mushtaq, who was charged under sections 302, 324, 148, and 149 of the Pakistan Penal Code 1860 in connection with a firing incident resulting in one death and multiple injuries. The core legal question was whether the petitioner was entitled to bail despite being named in the First Information Report, given conflicting witness statements and police investigation findings. The Court held that the petitioner was entitled to bail, finding that the case required further inquiry. The ratio of the decision rests on the fact that a key prosecution witness, in his statement under section 161 of the Code of Criminal Procedure 1898, did not implicate the petitioner, attributing the fatal injury to a co-accused instead. Furthermore, the police investigation had declared the petitioner innocent, and no incriminating recovery was made from him. The key principle laid down is that where there are material contradictions in the prosecution's case, such as the exclusion of the accused by a key witness and a police report of innocence, the case falls within the scope of 'further inquiry,' justifying the grant of bail.
- Does a police report declaring an accused innocent constitute grounds for further inquiry in a bail application?
- Can bail be granted when a key prosecution witness fails to name the accused in a statement recorded under section 161 of the Code of Criminal Procedure 1898?
- Is the absence of recovery of a weapon a sufficient ground to establish a case of further inquiry for the purpose of bail?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
ORDER
' RANA ZAHID MAHMOOD, J.---After arrest bail application of the petitioner in case F.I.R. No,375-2008 dated 27-6-2008 under sections 302, 324, 148 and 149 P.P.C. Registered at Police Station Cantt.
Gujranwala wherein allegation against the petitioner is that while he was armed with Kalashnikov along with seven others then made indiscriminate firing which caused injuries on Muhammad Waheed alias Ladi brother of the complainant on his legs while Ehtsham-ulHaq deceased received one fire on the abdomen and Farooq Hussain and Alam Din P. Ws. Also sustained fire-arm injuries.
Ehtsham ul Haq subsequently died and offence under section 302, P.P.C. Was added in the F.I.R.
2. Post arrest bail application of the petitioner was dismissed by learned Addl: Sessions Judge, Gujranwala, vide order dated 30-9-2008, hence this petition to this Court.
3. Learned counsel for the petitioner has submitted that though petitioner is named, in the F.I.R. For indiscriminate firing on the injured P.Ws, and the deceased but fact remains that Inam ul Haq - brother of the deceased Ehtsham ul Haq also made statement before, the police in: which name of the petitioner is not mentioned and submitted that injury on the deceased vide said statement is attributed to Majid alias Majda co-accused. He submitted that in the investigation petitioner was found innocent and discharge report was prepared on 29-8-2008 by the police but learned Magistrate did not agree with the same. He submitted that no recovery of any fire-arm has been made from the petitioner therefore, submitted that cage against the petitioner requires further inquiry and he is entitled to bail. Also submitted that Alam Din and Farooq two injured P.Ws, also did not support the prosecution case against the petitioner and submitted that petitioner has been falsely involved due to previous murder cases enmity.
4. Learned Deputy Prosecutor- General has opposed the bail application and submitted that petitioner is named in the F.I.R, who made indiscriminate firing and as a result thereof Ehtsham ul Haq was murdered while three P.Ws, were injured. He submitted that offence falls within the prohibitory clause and no case for bail is made out.
5. Arguments heard. Record perused. Petitioner is though named in the F.I.R, yet Inam-ul-Haq P.W.
Did not name the petitioner in his statement under section 161 Cr.P.C, recorded during the investigation. According to the statement of said P.W. Fatal injury to Ehtsjiam ul Haq is attributed to Majid co-accused while the petitioner has been found innocent during polite investigation. No recovery was made from him. Thus case against the petitioner is one of farther inquiry. This petition is therefore accepted and petitioner is allowed bail in the sum of Rs, 100,000 (one lac) with one surety in the like amount to the satisfaction of learned trial Court.