MUHAMMAD BILAL vs STATE and another
This matter arises from a post-arrest bail petition filed under Section 497 of the Code of Criminal Procedure 1898 seeking bail in a case registered under Section 302/34 of the Pakistan Penal Code 1860. The core legal question involves determining whether the petitioner, who was not nominated in the first information report of an unseen night-time occurrence and from whom only a sota was recovered while fatal firearm injuries were attributed to a co-accused, made out a case for further inquiry under Section 497. The Lahore High Court held that the circumstances of the case, including the petitioner's non-nomination in the FIR, exposure before the identification parade, and the absence of any attributed firearm injury or overt act, brought the case within the scope of further inquiry. The court laid down the principle that pre-trial incarceration should not be used as a punishment, and where a case for further inquiry is made out, the submission of challan or gravity of the offence alone is not a sufficient ground for refusing bail, as the ultimate conviction of a guilty person can repair a mistaken relief of bail, whereas no satisfactory reparation can be offered for unjustified incarceration.
- Whether post-arrest bail can be granted when the accused is not nominated in the FIR and no firearm injury or overt act is attributed to him?
- Does the recovery of a sota instead of a firearm weapon warrant further inquiry in a murder case involving firearm injuries?
- Whether the submission of a challan is a sufficient ground for refusing bail when a case for further inquiry is otherwise made out?
- Section 497, Code of Criminal Procedure 1898
- Section 302/34, Pakistan Penal Code 1860
ORDER
Through this petition under Section 497 Cr.P.C. the petitioner Muhammad Bilal son of Muhammad Nawaz seeks post-arrest bail in case F.I.R. No, 11/10, dated 23.1.2010 registered under Section 302/34 PPC with P.S. Nawan Shehr District khanewal According to the prosecution case, complainant was working in Hussain Mills Qadirpur Ran. His younger brother Muhammad Aftab was servant of Khizar Hayat son of Pathana. Muhammad Aftab was staying in the orchard owned by Haji Muhammad Tufail in Mouza Thul Najeeb since four months. On 22.1.2010, complainant along with his maternal uncle Wali Dad and Muhammad Asif came to see Muhammad Aftab in the said orchard. They were talking in the cottage when at about 12 mid night, hearing the voice of movement, Muhammad Aftab came out of cottage and complainant along with Wali Dad and. Muhammad Asif followed him. They saw three persons with normal height and body in the light of torch. One of those persons fired with Carbine which hit Aftab on front of his chest and Bally who fell down and succumbed to the injuries. Accused persons fled away.
2. The bail petition of the petitioner was dismissed by the learned Additional Sessions Judge, Kabirwala on 6.5.2010.
3. Learned counsel for the petitioner contends that presence of the petitioner has not been established at the place of occurrence in the police investigation. The petitioner did not cause any fire shot on the body of the deceased and fatal injury is attributed to Allah Ditta co-accused. In identification parade Allah Ditta co-accused was identified and he was found guilty in investigation. Learned counsel further contends that no overt act is attributed to the petitioner.
Petitioner is non-convict and non-record holder. Petitioner is no more required for any further probe or investigation. The petitioner is behind the bars since 5.4.2010. Further contends that it was a blind murder and the deceased was murdered in a mysterious manner. That the motive is not attributed to the petitioner. Further contends that the occurrence took place at mid night. Further contends that recovery of sota has been effected from the petitioner while injuries on the body of the deceased are found to be caused by fire-arm.
4. Conversely, learned Law Officer with the assistance of learned counsel for the complainant submitted that the petitioner was duly identified in the identification parade. Petitioner fully participated in the occurrence with his other co-accused. Challan has been submitted before learned trial Court and the .case has been fixed for prosecution evidence. The offence falls within the prohibitory clause of Section 497 Cr.P.C. That bail petition of the petitioner should be dismissed.
5. I have heard the learned counsel for the parties at length and perused the record.
6. Petitioner is not nominated in the FIR. It was unseen occurrence. Recovery of sota is effected from the petitioner while injuries caused on the body of the deceased are of fire-arm. No overt act is attributed to the petitioner. It was a night occurrence. Prior to the identification parade, petitioner was exposed to the PWs. Investigation of the case is complete. Petitioner is no more required for further probe or further investigation. It will not serve any useful purpose keeping the petitioner behind the bar for an indefinite period as a punishment. Question of sharing common intention will be determined after recording of evidence. Grant of bail does not mean acquittal. It is just transfer of custody from state agency to the private agency. After recording of the evidence, if the petitioner is found guilty he will be punished and if he is acquitted, there will be no reparation for incarceration. Submission of challan is no ground for refusing bail if case for bail is otherwise made out. Safe reliance can be placed on PLD 1998 SC 585 Muhammad Ismail Vs. Muhammad Rafiq and another and on the judgment of Hon'ble Supreme Court reported as Tariq Bashir etc. vs. The State (PLD 1995 SC 34): `The ultimate conviction and incarceration of a guilty person can repdir the wrong caused by as mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any state of the case, albeit his acquittal in the long run'.
Circumstances of the case constituted the case of the petitioner one of further inquiry which is covered u/S. 497 Cr.P.C. I exercise my discretion, allow post arrest bail to the petitioner subject to furnishing his bail bonds in the sum of Rs, 3,00,000/- with one surety in the like amount to the satisfaction of learned trial Court. However, observations made in this bail granting order are of tentative in nature, will not prejudice the case of either side during the trial.