ABDUL MAJEED vs THE STATE and another
The petitioner sought post-arrest bail in a case registered under Sections 302 and 34 of the Pakistan Penal Code 1860 arising from an F.I.R. concerning a fatal assault on the complainant's son. The core legal question was whether the petitioner made out a case for further inquiry to justify the grant of post-arrest bail. The Lahore High Court held that the petitioner was entitled to bail, noting that he had been in jail since a significant period, no weapon was recovered from him, the injury attributed to him was not on a vital part of the body, he had been found innocent during police investigation, and a statement allegedly made by the deceased before an A.S.I. omitted to implicate the petitioner. The key principle laid down is that where the role attributed, conflicting police findings, and material on the police file pointing towards innocence create reasonable doubt regarding the accused's participation, the case falls within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898, warranting the grant of bail.
- Whether post-arrest bail can be granted when the injury attributed to the accused is not on a vital part of the body and no weapon is recovered from him?
- Does a statement made by the deceased omitting to implicate an accused, available on the police file, make the case one of further inquiry?
- What is the legal effect on bail when an accused is found innocent during police investigation but the Magistrate disagrees with the discharge report?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 173, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
' HABIB ULLAH SHAKIR, J.--The petitioner seeks post arrest bail in case F.I.R. No,125 dated 8-6-2008 registered under sections 302/34 of the P.P.C, at Police Station Marot, District Bahawalnagar.
2. According to the F.I.R. On 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 F.I.R, that Abdul Majeed fired with the 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, A.S.I, in which he did not implicate the petitioner. Therefore, the petition 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 ground that the petitioner is nominated in the F.I.R, 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, A.S.I, 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, A.S.-I.
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.