FAYYAZ AHMED vs STATE through Additional Advocate-General
This criminal revision petition is directed against the order of the District Court of Criminal Jurisdiction, Mirpur, which refused post-arrest bail to the petitioner, Fayyaz Ahmed, in a case registered under Sections 324, 337, 427, 353, and 186 of the Azad Penal Code concerning an armed attack on a police patrol party. The core legal question was whether the petitioner was entitled to bail given the circumstances of the night occurrence, doubtful identification, and discrepancies in the medical report. The Shariat Court of Azad Jammu and Kashmir accepted the petition and granted bail to the petitioner, holding that the occurrence took place during dark hours making identification doubtful, the medical report lacked time and duration of the injury, and the petitioner was no longer required for further investigation after the submission of the challan. The key principle laid down is that post-arrest bail may be granted when prosecution evidence regarding identity and medical condition appears doubtful at the preliminary stage and the accused is no longer required for investigation.
- Whether post-arrest bail can be granted when the occurrence takes place during dark hours making the identification of the accused doubtful?
- Does a discrepancy in the medical report regarding the time and duration of an injury warrant further probe for the purpose of bail?
- Is an accused entitled to bail once the investigation is complete and challan is submitted, when the accused is no longer required for physical custody?
- Section 324, Azad Penal Code
- Section 337, Azad Penal Code
- Section 427, Azad Penal Code
- Section 353, Azad Penal Code
- Section 186, Azad Penal Code
- Prohibition (Enforcement of Hadd) Act, 1985
ORDER
Above titled revision petition is directed against the order of District Court of Criminal Jurisdiction, Mirpur dated 03-03-2011, whereby the petitioner was refused bail.
2. Brief facts forming background of the revision petition are that a case under Sections 324, 337, 427, 353, 186, A.P.0 was registered at Police Station, Chaksawari on the complaint of Ummar Dar. It was reported that on 17.01.2011 at about 9.30, p.m when the Police patrol party came at the place known as Khanda More, Muhammad Irfan, Muhammad Fayyaz and Qadeer came there in a Toyata Corolla car and stopped about few yards from the Police vehicle. The aforesaid offenders armed with lethal weapons came out. They raised lalkara to kill them and started firing. The bullets hit the Police vehicle at different parts of its body. One of the fires also hit the complainant at his left leg.
Motive behind the occurrence was that prior to the incident the Police party arrested a companion of the offenders namely Khalid Mahmood in a case registered against him under the Prohibition (Enforcement of Hadd) Act, 1985. This annoyed the accused-petitioner and others because of which they threatened the Police, asked to release him and thereafter committed the offence.
3. After arrest, the accused petitioner applied for bail before Tehsil Court of Criminal Jurisdiction, Mirpur which was refused while the second bail application was also dismissed by District Court of Criminal Jurisdiction, Mirpur through the impugned order, hence this revision petition.
4. Learned counsel for the petitioner argued that the occurrence took place during dark hours of the night, identification of the accused-petitioner was in doubt. He was not ascribed any specific role in the occurrence. The case of the accused-petitioner was also at par with that of Qadeer Hussain who was allowed bail by the Court below and on the ground of rule of consistency he was also entitled to concession of bail, besides medical report was doubtful, moreover, evidence brought on record was not sufficient to establish that injury found at the person of the complainant was caused by the fire allegedly made by the accused-petitioner. Both the Courts below while refusing bail failed to appreciate that the prosecution story being highly doubtful was not worth consideration and prima facie the matter was that of further probe, therefore, by accepting the revision petition the same may be granted.
5. On the other hand, it was argued that the accused-petitioner and two others were nominated in promptly lodged F.I.R. he was ascribed specific role of firing and causing injury to the complainant, weapon of offence was recovered from him, crime empties were also seized from the place of occurrence. A prima facie case connecting the petitioner with the alleged offence existed on record, thus it cannot be said that the Court below committed any error while passing the impugned order, therefore, the revision petition may be dismissed.
6. I have heard the learned counsel for the parties and gone through the record of the case.
7. It may be stated here that as per prosecution claim, the Police arrested Khalid Mahmood in a case registered against him under The Prohibition (Enforcement of Hadd) Act, 1985, upon which the petitioner and others threatened the Police and asked to release him. On the fateful day due to the aforesaid enmity they attacked the Police patrol party and caused injury to the complainant. It is important to note that the occurrence took place during dark hours of the night, thus prima facie at this stage it was hard to believe that the witnesses identified the role played by each of the offenders, besides F.I.R and injury report prepared by Investigating Officer do not indicate that there was any injury at left leg of the complainant but surprisingly after medical examination a report showing lacerated wound (Jurh Ghayr Jaifaha Damiyaha) measuring 2.5 inches on upper part of the left thigh on lateral aspect caused by a firearm weapon was found at the person of the complainant was placed on record. A careful consideration of the report reveals that neither it shows the time of examination nor duration of the said injury. The aforesaid circumstance suggests that the matter was that of serious consideration, moreover, after completion of investigation the challan was submitted before the trial Court and petitioner was not physically required by the Police for the purpose.
In light of the facts listed above, the revision petition is accepted and the petitioner is granted bail.
He shall be released from custody on furnishing bail bond in, sum of Rs, 1,00,000/- and personal bond in the like amount to the satisfaction of any Magistrate 1st Class, Mirpur.