ARSHID JAMEEL vs STATE and another
This petition for post-arrest bail arises from a criminal case involving charges under Sections 302, 324, 148, 149, 337-L, 337-A(i), 337-F(i), 337-F(ii), and 337-L(2) of the Pakistan Penal Code 1860, and Section 13 of the Arms Ordinance 1965. The petitioner, nominated in the FIR, was alleged to have fired at the complainant party, causing multiple injuries to one individual and fatal injuries to a bystander. The core legal question was whether the petitioner was entitled to bail under Section 497, Code of Criminal Procedure 1898, despite being placed in column No. 2 of the report under Section 173, Code of Criminal Procedure 1898, by the police. The Court held that the police's opinion, which favored the petitioner, was not binding as it lacked cogent evidentiary support. Finding that the ocular account was corroborated by medical evidence and the recovery of weapon empties, the Court dismissed the bail petition. The principle laid down is that the police's investigation report is not binding on the court when it is not supported by material evidence, and bail cannot be granted solely on the basis of a favorable police opinion.
- Is the opinion of the police in a report under Section 173, Code of Criminal Procedure 1898, binding upon the Court during bail proceedings?
- Can a petitioner be granted bail solely because the police placed them in column No. 2 of the final investigation report?
- Does the existence of ocular account and medical evidence constitute sufficient grounds to deny bail despite a favorable police investigation report?
- Section 497, Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 337-L, Pakistan Penal Code 1860
- Section 337-A(i), Pakistan Penal Code 1860
- Section 337-F(i), Pakistan Penal Code 1860
- Section 337-F(ii), Pakistan Penal Code 1860
- Section 337-L(2), Pakistan Penal Code 1860
- Section 13, Arms Ordinance 1965
- Section 173, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
Through this petition, filed under Section 497, CrP.C., the petitioner/Arshid Jameel seeks post arrest bail in case FIR No, 1086/2011, dated 19.11.2011, offences under Sections 302, 324, 148, 149, 337-L, 337- A(i), 337-F(i), 337-F(ii), 337-L(2), PPC and 13 of Arms Ordinance, 1965, registered with Police Station Baghbanpura, Gujranwala, at the instance of Muhammad Khalil, complainant.
2. Briefly, the allegation against the petitioner is that he while armed with Repeater Gun with the intention to kill Muhammad Afzal fired at him, which hit on his different parts of body. It is alleged in the crime report that due to firing of the accused, two passerby's namely Abdul Wahid and Hamza sustained injuries and subsequently, one of them i,e, Abdul Wahid, succumbed to the injures on 24.1.2012. It is also mentioned in the crime report that one Waqas alias Viki succumbed to the injuries at the spot.
3. Learned counsel for the petitioner contends that the petitioner has been involved in the case against the actual facts and circumstances by the complainant in connivance with the police with ulterior motive. He further contends that there is a delay of more than four hours in lodging of the FIR for, which no explanation has been rendered. He also contends that during the course of investigation, it was found that the petitioner was not present at the place of occurrence and he was given the premium of innocence and was placed in column No, 2 of report under Section 173, Cr.P.C. He argued that during the course of investigation, it has been observed that the complainant party was the aggressor. He further argued that recovery of weapon of offence was not affected from the petitioner, therefore, his case becomes one of further inquiry falling within the ambit of Section 497(2), Cr.P.C. entitling him to be released on bail.
4. On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the complainant argued that the petitioner is nominated in the crime report and there is specific allegation of causing injuries to Muhammad Afzal, injured PW. Further contend that the injured sustained as many as 13 injuries on his person and recovery of 12 empties of Gun .12 bore from the place of occurrence further supports the prosecution version. Also contends that the injured PWs have categorically stated that the petitioner is involved in the occurrence and was present at the place of occurrence and caused injuries to Muhammad Afzal, which also resulted into causing injuries to passerby's, namely, Abdul Wahid and Hamza and amongst these two passerby's, subsequently Abdul Wahid succumbed to the injuries and was declared dead on 24.1.2012. He argued that the investigation of this case was carried out in malicious manner and as such, the complainant has opted to file a complaint, in which the petitioner alongwith other co-accused have been summoned.
5. I have heard the arguments advanced by the learned counsel for the petitioner, learned Deputy Prosecutor-General and learned counsel for the complainant and gone through the available record.
6. Admittedly, the petitioner is nominated in the FIR with specific role of causing injuries to Muhammad Afzal, PW and two passerby's namely, Abdul Wahid and Hamza, whereas Muhammad Afzal, injured, sustained as many as thirteen(13) injuries. Subsequently one of passerby, namely, Abdul Wahid succumbed to the injuries on 24.1.2012. It is pertinent to mention here that one Waqas was also done to death during the occurrence by the co-accused of the petitioner. The ocular account is supplemented by the medical evidence. Recovery of 12 empties of Gun .12 bore was affected from the place of occurrence. Though the premium of innocence has been given to the petitioner but ipsi dixit of police is not binding upon the Court, otherwise the opinion of the police is not based upon any cogent material available on the record. The main story of police investigation is collection of data of Cell Phone recovered from the possession of the petitioner but admittedly the same is not issued against the name of petitioner, therefore, the same does not advance the case of the petitioner especially when he has not taken this plea at the time of his arrest, rather the same was agitated at a belated stage. Keeping in view the dictum of law laid down by the august Supreme Court of Pakistan in the case of Shoukat Elahi vs. Javed Iqbal and others (2010 SCM R 966), this Court is not persuaded to grant post arrest bail to the petitioner. Resultantly, this petition being devoid of any force is dismissed.