NAUMAN ZAMAN vs STATE
The petitioner Nauman Zaman sought post-arrest bail in case FIR No. 31/08 registered under Section 392 of the Pakistan Penal Code 1860 at Police Station Sadar Wazirabad, District Gujranwala, concerning an armed robbery of a car and valuables. The core legal question was whether the petitioner was entitled to bail based on affidavits submitted by the complainant and prosecution witnesses stating that the case was lodged on suspicion and that they had no objection to the grant of bail. The Lahore High Court dismissed the bail petition, holding that affidavits filed by the complainant and witnesses to absolve the accused in a non-compoundable, heinous crime cannot be relied upon at the bail stage, especially where recovery of a pistol and cash was effected and there is apprehension of tampering with evidence. The key principle laid down is that the evidentiary value of compromise affidavits in non-compoundable offenses must be tested during trial through cross-examination, and pressure on complainants by hardened criminals cannot serve as a valid ground for granting post-arrest bail.
- Whether affidavits filed by a complainant and witnesses stating that an accused is innocent can be considered for granting post-arrest bail in a non-compoundable offense?
- Does the recovery of incriminating articles provide a sufficient confirmatory link to deny post-arrest bail in a robbery case?
- Can the evidentiary value of a complainant's turnaround affidavit be assessed at the bail stage without testing through cross-examination during trial?
- Section 392, Pakistan Penal Code 1860
ORDER
The petitioner Nauman Zaman seeks bail after-arrest in case FIR No, 31/08 dated 25.1.2008 for offence under Section 392 PPC .registered at Police Station Sadar Wazirabad, District Gujranwala.
2. According to the FIR, on 23.1.2008 the complainant was weling on a car and no sooner did reach near Sadokhi in another car receipted and the petitioner along with his co-accused on gun-point d to the complainant and PWs. The complainant and PWs were tied and were thrown near the bridge.
The petitioner and his co-accused took along with them the car and other valuable articles.
3. It is argued by learned counsel for the petitioner that the complainant and witnesses have not supported the case against the petitioner, that the complainant had filed an affidavit in the Court of learned Additional Sessions Judge; that the complainant along with the witnesses are in attendance with their affidavits deposing therein that the case against the petitioner was lodged on suspicion. According to their satisfaction, he is innocent and has no objection for grant of bail.
4. Conversely, the learned Deputy Prosecutor General opposed all these grounds.
5. Heard. According to the result of investigation, recovery of pistol and cash amount was effected.
The occurrence, as recorded in the FIR, had taken place, in awful manner. The recovery provides a confirmatory link with the offence. The petitioner and his co-accused looted the amount by show of force. The petitioner and his co-accused are the residents of District Jehlum. whereas the occurrence has been committed at 4.00 p;m. in the area of Kamonke, District Gujranwala. The petitioner appears to be hardened criminal. The filing of affidavits by the complainant 'and witnesses excluding the petitioner from the occurrence, is not a valid ground to enlarge him on bail.
The reason is that dathits usually have a net-work and their aides invariably put pressure on the complainant to withdraw from the case. The offence being not compoundable, the value of affidavit of the complainant, if at all sworn by him, would be more appropriately tested in course of trial when prosecution will also have an opportunity to cross-examine him and to contradict him with the FIR. At this stage, I am not prepared to attach any value to the alleged affidavits of the PWs or that of the complainant. The offence in which the petitioner is involved shakes the human conscience. Grant of bail would amount to trivialize and play down the gravity of the offence. Since it is a non-compoundable offence, the value of the affidavits to shift from the earlier version as contained in third statements to the police, would be tested in the course of trial. On the other hand; it also appears that the accused are tampering with the prosecution evidence. The petitioner appears to be a criminal with considerable clout. He is not entitled to bail. His application is dismissed.