MUHAMMAD SAEED vs STATE and another
The petitioner sought post-arrest bail in a case registered under Sections 302 and 34 of the Pakistan Penal Code 1860 at Police Station Saddar Arifwala. The prosecution alleged that the petitioner fired at the neck of the deceased, as claimed in secondary statements made by eye-witnesses a day after the incident, although they had earlier stated that an unknown person committed that act and failed to disclose the source of their subsequent knowledge. Furthermore, successive investigating officers gave divergent opinions, initially declaring the petitioner innocent before later implicating him, and the trial had been delayed. The court observed that the hesitancy in disclosing the source of knowledge and the conflicting police reports provided sufficient grounds for further inquiry into the petitioner's guilt. The Lahore High Court held that the case fell within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898, and consequently admitted the petitioner to post-arrest bail, ruling that alleged abscondence did not adversely affect the outcome under such circumstances.
- Does a secondary statement by eye-witnesses naming an accused without disclosing the source of knowledge create grounds for further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Do divergent opinions of investigating officers regarding the participation of an accused affect a post-arrest bail plea?
- Does alleged abscondence adversely affect the grant of bail when sufficient reasons exist for further probe into the guilt of the accused?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
- Section 512, Code of Criminal Procedure 1898
- Section 173, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
The petitioner seeks bail after arrest in case FIR No. 487, dated 23.09.2010, under Sections 302, 34, PPC, registered at Police Station Saddar Arifwala, District Pakpattan Sharif.
2. Precisely the prosecution case as narrated by Muhammad Eisa (complainant) is that his brother Muhammad Amin while riding a motorcycle reached the agricultural land of one Ghulam Rasool where he was intercepted by three persons, armed with pistol .30 bore each, one out of whom Muhammad Bashir fired a shot with his weapon which landed at the head, close to left ear of his brother and pierced across the skull from the other side, one of the unknown accused also made a fire shot which hit the neck area of his brother; the occurrence was witnessed by Manzoor Ahmad and Muhammad Sharif; the motive behind the occurrence pertained to the fact that accused Bashir had developed illicit relationship with his niece, who asked him for her hand but he rejected his request.
3. The eye-witnesses Manzoor Ahmad and Muhammad Sharif were examined under Section 161, Cr.P.C. on 23.09.2010 by the I.O. whereby they endorsed the story of FIR in entirety. Both of them however, rendered another statement on 24.09.2010 and on this occasion, they nominated Muhammad Saeed (petitioner) with the liability to have fired at the neck of the deceased, without disclosing the source of their knowledge qua the said fact.
4. After hearing learned counsel for the parties and perusing the record, it is observed that the petitioner's name figures, for the first time as an accused when, both the eye-witnesses, Manzoor Ahmad and Muhammad Sharif rendered secondary statements an 24.09.2010 with the contention that they had identified him and it was he, who had fired at the neck of the deceased. They however, did not disclose the source through which they learnt about the alleged participation of the accused/petitioner in the occurrence. Interestingly, both the eye-witnesses categorically contended before the I.O. on 23.09.2010 while rendering statements under Section 161, Cr.P.C. that an unknown accused, who accompanied Muhammad Bashir accused, fired a missile which passed through the neck of the deceased. The hesitancy on their part in hinting at the source of their knowledge is a crucial circumstance which cannot be lost sight of easily. It appears from the record that only one prosecution witness has been recorded by the trial Court so far notwithstanding a categorical direction of this Court, made on 17.07.2012 in Crl. Misc. No. 8251-B- 2012, that the trial of the accused-petitioner be concluded expeditiously, within shortest possible time. Divergent pleas has been raised on both the sides as to who actually contributed towards delay in conclusion of the trial but I find from the record that much of the time had gone wasted, due to repeated strike calls by the local bar association. The petitioner was arrested in this case on 09.05.2012 but not before, he had been declared a proclaimed offender during investigation and a report under Section 512, Cr.P.C. stood submitted against him by the I.O., before the learned trial Court. He was, however, declared innocent by the I.O. who opined about the FIR-case having gone untraced. On an objection raised by the prosecution branch, the I.O. prepared a fresh report under Section 173 Cr.P.C, placing the name of the petitioner in its Column No. 2. In the last round of investigation conducted by the RIB Sahiwal, the petitioner and his co--accused Muhammad Bashir were found involved in the occurrence. The divergent opinions of the I.Os about alleged participation of the petitioner in the occurrence are relevant for consideration of the bail plea of the petitioner. Sufficient reasons exist to believe that the petitioner's case calls for further probe into his guilt, within the scope of Section 497(2) Cr.P.C, hence his alleged abscondence does not adversely affect the outcome of this petition. Therefore, the instant application is a1lowed and petitioner is admitted to post arrest bail subject to furnishing bail bonds in the sum of Rs.2 lacs with two sureties each in the like amount to the satisfaction of learned trial Court.