TALIB HUSSAIN vs THE STATE
This criminal petition was filed by the petitioner seeking post-arrest bail in F.I.R. No. 162 of 2008 registered under sections 302, 109, 148, and 149 of the Pakistan Penal Code 1860 at Police Station Ahmad Nagar, District Gujranwala. The core legal question was whether the petitioner, whose role was restricted to abetment and who was declared innocent during police investigation upon a plea of alibi, made out a case for further inquiry under section 497(2) of the Code of Criminal Procedure 1898. The Lahore High Court held that the petitioner was entitled to bail as the witnesses of the alleged conspiracy did not fully support the prosecution case, and the police opinion regarding his innocence, based on cogent material, warranted weight on a tentative assessment. The court laid down the principle that where the plea of alibi is accepted during investigation and supporting witnesses do not implicate the accused, the case falls within the scope of further inquiry, justifying the grant of post-arrest bail.
- Whether an accused charged with abetment whose plea of alibi is accepted by the police is entitled to post-arrest bail?
- Can the opinion of the police regarding the innocence of an accused based on cogent material be considered during a tentative assessment for bail?
- Does the failure of prosecution witnesses to support the allegation of conspiracy during investigation make out a case of further inquiry?
- Section 302, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
ORDER
' TARIQ SHAMIM, J.---.Through this petition, the petitioner seeks post-arrest bail in case, F.I.R. No,162 of 2008, dated 15-7-2008 for offences under sections 302, 109, 148 and 149, P.P.C., registered at Police Station Ahmad Nagar, District Gujranwala.
2. Briefly, the facts of the case are that the brother of the complainant was murdered, as a consequence whereof the aforementioned F.I.R. Was lodged.
3. The learned counsel for the petitioner contends that the only role ascribed to the petitioner and his two co-accused, namely, Khalid and Anwar is of abetting the offence; that the witnesses of abetment have not supported the prosecution case before the police; that during investigation the plea of alibi extended by the petitioner was accepted by the police and consequently, he was declared innocent and discharge report was also prepared and that the petitioner is not required by the police for any purpose, therefore, he is entitled to be released on bail.
4. The learned Deputy Prosecutor General assisted by the learned counsel for the complainant has vehemently opposed the petition.
5. I have heard the learned counsel for the parties and gone through the record.
6. It has been noticed that the petitioner and his co-accused namely, Khalid and Anwar were implicated by the complainant with abetment of the murder of his brother. Incidentally, the witnesses in whose presence the conspiracy was hatched in their statements recorded under section 161, Cr.P.C. Have not fully supported the prosecution case in the course of investigation. The plea of alibi extended by the petitioner was accepted and consequently, he was declared innocent.
The opinion of the police as to the innocence of the petitioner is based on cogent material which, therefore, has to be given weight. On a tentative assessment of the evidence available on the record. I have come to the conclusion that the case of the petitioner is one of further inquiry as there is not enough incriminating material available to connect him with the offence.
7. Consequently, this petition is ALLOWED and the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs,1,00,000 with one surety in the like amount to the satisfaction of the learned trial Court.