NADEEM HUSSAIN vs STATE etc.
This matter concerns a post-arrest bail application filed by the petitioner, who was implicated in a criminal case registered under Sections 302, 109, 147, 148, and 149 of the Pakistan Penal Code 1860, read with Sections 7/21(i) of the Anti-Terrorism Act 1997 and Article 155(c) of the Police Order 2002. The petitioner was not named in the initial FIR but was later implicated in a supplementary statement. Crucially, the police investigation found the petitioner innocent, placing his name in Column No. 2 of the challan. The core legal question was whether bail could be granted when the trial was near completion. The Court held that while courts are often hesitant to grant bail during active trials, there is no absolute legal bar to doing so. Relying on Supreme Court precedent, the Court affirmed that the right to bail under Section 497 of the Code of Criminal Procedure 1898 prevails over judicial practice. Finding reasonable grounds to believe the petitioner was not guilty, the Court granted post-arrest bail, emphasizing that statutory rights supersede procedural convenience.
- Does the commencement of a trial create an absolute legal bar to the grant of post-arrest bail?
- Does the right to bail under Section 497 of the Code of Criminal Procedure 1898 prevail over the judicial practice of refusing bail during an ongoing trial?
- Can bail be granted to an accused whose name was placed in Column No. 2 of the challan by the police?
- Section 302, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 147, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 7, Anti-Terrorism Act 1997
- Section 21(i), Anti-Terrorism Act 1997
- Article 155(c), Police Order 2002
- Section 173, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
Nadeem Hussain-petitioner after having been booked in the FIR No, 449 dated 20.08.2010 registered under Sections 302, 109, 147, 148, 149 PPC read with Sections 7/21(i) of the Anti-Terrorism Act, 1997 and Article 155(c) Police Order, 2002, at Police Station Saddar Sialkot on the written application of Zarar Butt, seeks post arrest bail.
2. Brief facts of the case are that Ali Peter and others committed the murder of Mughees Sajjad and Muneeb Sajjad dubbing them as muggers.
3. In support of bail application, learned counsel for the petitioner has argued that initially the petitioner was not named in the FIR, rather he was named in the supplementary statement after five days wherein complainant has not mentioned any source through which he came to know about the name of the petitioner. Adds that the address of the petitioner given by the complainant is false and the petitioner has been made scapegoat in this case. Learned counsel further submits that the case was thoroughly investigated and the police found the petitioner innocent and his name has been placed in Column No, 2 of the challan implying non-recommendation of prosecution of the petitioner. Learned counsel further adds that the material available on the record as to the petitioner prima facie makes his case as that of further inquiry.
4. Learned DPG, assisted by the learned counsel for the complainant, has opposed the bail. It has been argued that, the trial of the petitioner along with his co-accused is at the verge of its completion and at this stage, it would not be desirable to go into the merits of the case deeply while deciding the bail application. Adds that it would be better to issue direction to the learned trial Court to conclude the trial within a short proximity of time. While concluding the arguments, it has been submitted that two young chaps who were absolutely innocent and had not yet entered in the realities of life have been done to death like animals.
5. Hearkened and record perused.
6. Of course, one feels shock after going through the contents of the FIR, but at the same time Courts are' hedged to decide the cases within the framework of law. Petitioner was not nominated in the FIR, after five days the complainant made his supplementary statement involving the petitioner, case was thoroughly investigated and the petitioner has been found not involved and his name being innocent has been placed in Column No, 2 of the report prepared under Section 173 Cr.P.C.
7. No doubt Courts are constrained in .deciding the bail applications when the trial has commenced but this issue has been settled in an authoritative judgment of the Hon'ble Supreme Court of Pakistan reported as Muhammad Ismail vs. Muhammad Rafique and another (PLD 1989 S.C. 585), wherein it has been held that non-granting of bail after the commencement of trial primarily relates to practice of the Court whereas the law does not make any bar on it. It has further been held that in the bail matter right of a person is involved and by virtue of law he claims it and where practice and rights go simultaneously the right would prevail. Phraseology of Section 497 Cr.P.C. is very much clear on it that bail can be granted at any stage of the case. For its better understanding, sub-section (4) of the ibid is jotted down infra:-- "497. When bail may be taken in cases of non-bailable offence,
(1) .....................
(2) ....................
(3) ....................
(4) If at any time after the conclusion of the trial of a person accused, of a. non-bailable offence before judgment is delivered Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused if he is in custody on the execution by him of a bond without sureties for his appearance to hear the judgment delivered.
(5) ...................
8. For what has been stated above, instant application is allowed and the petitioner is granted bail subject to his furnishing bail bonds in the sum of Rs, 100,000/- with two sureties each in the like amount to the satisfaction of the learned trial Court.