QAISAR ABBASS and another vs THE STATE and another
This matter concerns two consolidated petitions for post-arrest bail filed by four police officials accused of involvement in a murder case registered under Section 302 of the Pakistan Penal Code 1860. The core legal question was whether the petitioners were entitled to bail given the conflicting evidence regarding their presence and role at the scene of the crime. The Court held that the petitioners were entitled to bail, observing that the F.I.R. attributed the fatal firing solely to another accused, Inspector Nasir Nawaz, while assigning no specific role to the petitioners. Furthermore, the complainant explicitly stated in court that the petitioners arrived at the scene only after the occurrence, a position supported by a police investigation conducted by the D.S.P., despite a contrary finding in a judicial inquiry. The Court established the principle that where there is a divergence in evidence regarding the participation of the accused, and the complainant exonerates them, the case falls under the scope of further inquiry as contemplated by Section 497(2) of the Code of Criminal Procedure 1898, thereby justifying the grant of bail.
- Does the presence of conflicting evidence regarding an accused's role in a crime entitle them to bail under the principle of further inquiry?
- Can a court grant bail when the complainant explicitly states before the court that the accused played no role in the alleged offense?
- Is a judicial inquiry report binding on the High Court when considering a bail application?
- Section 302, Pakistan Penal Code 1860
- Section 186, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 353, Pakistan Penal Code 1860
- Section 427, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 13, Arms Ordinance 1965
- Section 497, Code of Criminal Procedure 1898
ORDER
' CH. IFTIKHAR HUSSAIN, J.---Petitioners Qaisar Abbas and Zafar Iqbal through Criminal Miscellaneous No,1620/B/2011 and Ijaz Ahmad and Muhammad Nawaz vide Criminal Miscellaneous No,2123/B/2011, separately have sought for post-arrest bail in case F.I.R. No,1149 registered under section 302, P.P.C. With Police Station Shorkot City, District Jhang on 24-10-2010.
2. As both these petitions have arisen out of one and the same case, hence are being disposed of by this single order.
3. Briefly the prosecution case as per the F.I.R. Is that on 24-10-2010 at about 9-30 p.m. Inspector Nasir Nawaz has fired at Safdar Ali, the son of the complainant. He died as a result of the same.
A.S.-I. Ljaz Ahmad and Constables Zafar, Nawaz and driver Qaiser were with him at that time. They also took away with them his (complainant) Charchal 7 MM rifle.
4. After hearing the learned counsel for the parties and perusing the record, I find that the prosecution story, if at .All may be taken to be, true, as it is in the F.I.R., the same would show that the fire made on the deceased was by Inspector Nasir Nawaz. It is only in the F.I.R. That they (petitioners Ijaz Ahmad, Zafar, Nawaz and Qaiser) were with him at that time. They have absolutely not been assigned any role in the alleged incident.
5. It may also be mentioned here that another F.I.R. No,1148 has been registered under sections 186, 324, 353, 427 and 34, P.P.C. Read with 13 of the Arms Ordinance No,XX of 1965, regarding the occurrence in which the death of deceased Safdar Ali has taken place. It was on the complaint of Nasir Nawaz/Inspector/S.H.O. Of that police station, who is accused in the instant case.
6. The complainant, present in Court, on query has stated that the petitioners have played no role in the death of his said deceased son and they had reached the spot after the. Occurrence.
7. It may be mentioned here that a judicial inquiry was also held into the matter. It was by Ghulam Akbar, learned Magistrate Ist Class, Shorkot. He, though, in the same has concluded that the petitioners are prima facie connected with the commission of the murder of deceased Safdar Ali but as stated above, that the complainant, who is the father of the deceased, has not advanced such version. He, rather, has clearly stated before this Court that they had reached the spot after the occurrence.
8. Besides than this, the matter was investigated by the D.S.P., City Circle, Jhang. He too has concluded that they (petitioners) had reached the spot late and they are absolutely innocent. The learned D.P.-G. Has also stated that they (petitioners) during the investigation have been found to be innocent.
9. In such circumstances, when there is divergence in the opinion of the learned Inquiry Magistrate and the police officer of the rank of D.S.P. And the own statement of the father of the deceased before this Court, who according to the F.I.R., is an eye-witness of the occurrence, that the petitioners have reached the spot after the occurrence as mentioned above, the case against them (petitioners) requires further inquiry into their guilt and the same so, is covered under subsection (2) of section 497, Cr.P.C.
10. They are stated to be the police constables. There is, thus, no likelihood of their absconsion. They are stated to be previous non-convicts, which has not been controverted by the other side.
11. In these circumstances of the case, I find that the case for extension of the relief prayed for to them has been made out.
12. The petitions, therefore, are accepted and they are admitted to bail subject to their furnishing bail bonds in the sum of Rs,200,000 (Rupees two lacs only) each with two sureties each in the like amount to the satisfaction of the learned trial Court.
' C.P. No,D-218 of 2011 and C.M.A. No, 2043 of 2011, decided on 7th March, 2011.