NABI SHER vs STATE
The petitioner sought post-arrest bail in a case involving charges under Sections 302, 324, 337-A(i)(ii), 337-L(ii), 452, 148, and 149 of the Pakistan Penal Code 1860, arising from a criminal trespass and assault incident that resulted in the death of the deceased. The petitioner argued that he was innocent, had been declared innocent during the police investigation, and that the incident involved two separate occurrences, with the complainant acting out of mala fide. The Court examined the record, noting that the petitioner was specifically attributed with causing fatal head injuries to the deceased, which were corroborated by medical evidence. The Court held that the police's opinion regarding the petitioner's innocence was not binding and that the petitioner's version of events, including the claim of separate occurrences, required judicial scrutiny at trial. Consequently, the Court dismissed the bail petition, ruling that the petitioner failed to establish grounds for bail at this stage, as the prosecution's case was supported by material evidence and the trial court must independently assess the facts.
- Is the opinion of the police regarding an accused's innocence binding on the court at the bail stage?
- Can a plea of separate occurrences be accepted at the bail stage without trial?
- Does the existence of a police report declaring an accused innocent automatically entitle them to bail?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 337-A(i), Pakistan Penal Code 1860
- Section 337-A(ii), Pakistan Penal Code 1860
- Section 337-L(ii), Pakistan Penal Code 1860
- Section 452, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
ORDER
The petitioner seeks post-arrest bail in case FIR No, 315, registered at Police Station City, Renala Khurd, District Okara on 05.10.2008 for offences under Sections 302/324/337-A(i)(ii)/337- L(ii)/452/148/149,PPC.
2. According to the FIR on 03.10.2008 at 9.30 a.m. the petitioner alongwith his co-accused, large in numbers, while armed with sots criminal trespassed into the house of Abdul Majeed deceased. It was the petitioner who gave first blow on his head hitting on right eye and second blow on his head and he fell down. Thereafter, co-accused also gave blows. The deceased in injured condition was shifted to DHQ Hospital, Okara and referred to Lahore. The dispute was over the boundary of the agricultural land.
3. Learned counsel for the petitioner argued that the occurrence has taken place on 03.10.2008. The FIR was lodged with deliberation on 05.12.2008; that in fact the petitioner is a complainant of FIR No 312/08 earlier lodged in respect of a separate occurrence; that the result of the investigation is that these are two different occurrences; the petitioner and his brother Ali Sher went alongwith their injured father Muhammad Ramzan to the hospital and obtained docket; that they had come into the knowledge of the occurrence while in the hospital. The petitioner was not present at the place of occurrence and had not participated. In the investigation he has been found innocent vide Diary No, 1, dated 06.12.2008 and nothing has been recovered from him; that according to the investigation Muhammad Azam co-accused Muhammad Shahbaz, Abdullah, and Muhammad Ijaz are the real accused; that the petitioner side suffered injuries on the same day and in the FIR these injuries have been suppressed. There is mala fide of the complainant to implicate the petitioner as he is complainant of FIR No 312/08 above-said; that the co-accused Muhammad Abdullah, Shahbaz and Muhammad Rizwan had already been enlarged on bail.
4. Of course, learned DPG assisted by learned counsel for the complainant opposed all these grounds by arguing that the occurrence has taken place in the house of deceased Abdul Majeed.
The petitioner side has suffered minor injuries. The deceased was shifted to DHQ Hospital in precarious condition and was referred- to Lahore where he took his last breath; that the finding of the Investigating Officer is based on mala fide and private complaint has also been lodged.
5. Heard. The Diary No 12, recorded on 06.12.2008 by Muhammad Arif, SI, reveals that Abdul Majeed deceased in serious injured condition went to police station and on the same day Raptt No 18, dated 03.10.2008 at 11.30 a.m. was entered whereas the petitioner alongwith his brother All Sher co- accused also went to police station to lodge the FIR. The diary recorded about the innocence of the police to say that these were two occurrences taken place on the same day, prima facie, find no support from any material. The petitioner side suffered minor injuries whereas the petitioner has been attributed Injuries No, 1 and 2 on the head of the deceased. These injuries were found sufficient to cause death. The medical evidence supports to the case of prosecution. The occurrence as verified by the investigator has taken place in the house of deceased. In the circumstances hardly it can be said that deceased was aggressor party. Muhammad Ramzan co- accused is father of petitioner and of co-accused Ali Sher. The claim of the petitioner that both were not present at spot and the injuries had been caused to the deceased by their cousins, who had lunged forward to avenge which resulted into death, is subject of trial requiring judicial scrutiny. The opinion of the police about innocence of the petitioner if at this stage is appreciated would seriously prejudice the case of prosecution. The version of the petitioner that these were two different occurrences cannot be taken as correct at bail stage. As observed above, there is no material to consider the opinion of the police regarding innocence of the petitioner as the trial Court has to come to its own independent conclusion. At this stage it cannot be said that the petitioner has not committed the offence. The reported case relied upon by learned counsel for the Petitioner Noor Muhammad v. The State (2009 SCM R 324) is not apt simile with the circumstances of the case in hand. This petition stands dismissed.