MUHAMMAD SHOAIB alias SHOABI vs THE STATE and another
This is a post-arrest bail petition filed by the petitioner, Muhammad Shoaib, in a case involving offences under sections 302, 324, and 34 of the Pakistan Penal Code 1860. The core legal question is whether the petitioner is entitled to bail given that he was not nominated in the initial F.I.R., was implicated via a supplementary statement, and the police investigation report suggested he was merely driving the motorcycle while his co-accused fired the weapon. The Court held that the petitioner is entitled to bail. The ratio of the decision rests on the fact that the petitioner was not named in the F.I.R., no specific injury was attributed to him, and the weapon of offence was recovered from his co-accused, not him. Consequently, the Court determined that the case against the petitioner falls within the purview of section 497(2) of the Code of Criminal Procedure 1898, as a matter of further inquiry. The key principle laid down is that where the evidentiary value of a supplementary statement and the extent of vicarious liability are ambiguous, the case warrants further inquiry, justifying the grant of bail.
- Does the withdrawal of a previous bail petition without a decision on merits bar a subsequent bail application?
- Is a case one of further inquiry when the accused is not nominated in the FIR and is implicated only through a supplementary statement?
- Does the absence of recovery of a weapon of offence from an accused, combined with police findings of limited participation, justify the grant of bail under section 497(2) of the Code of Criminal Procedure 1898?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 173, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
' MUHAMMAD ANWAARUL HAQ, J.---This is the second post-arrest bail petition before this Court on behalf of the petitioner. Earlier petition i.e, Criminal .Miscellaneous No,14448-B of 2011 was dismissed as withdrawn on 24-11-2011.
2. Through this petition, petitioner Muhammad Shoaib alias Shoabi seeks post-arrest bail in case F.I.R. No,539 of 2011 dated 22-7-2011, offences under sections 302, 324, 34 P.P.C., registered at Police Station Kot Radha Kishan District Kasur.
3. Learned counsel for the petitioner contends that the petitioner is not nominated in the F.I.R and he was subsequently involved in this case on the supplementary statement of the complainant; that even in the supplementary statement no specific injury to the deceased has been attributed to the petitioner and there is collective allegation against the petitioner and his co-accused Waqas alias Viky that they both fired at the deceased; that the petitioner and the complainant are residents of the same locality and in the initial F.I.R non-mentioning of the name of the assailants makes the case against the petitioner one of further inquiry into his guilt; that the motorcycle mentioned in the supplementary statement of the complainant i.e, LZU-1865 was already in the police custody in case F.I.R No,509 of 2011 and was taken on supurdari after two months of this occurrence; that the petitioner is not connected in any manner whatsoever with the motive part of this occurrence; that. Sheikh Hamza, another injured in the alleged occurrence, has not been cited as a witness in the calendar of witnesses; that the police has opined in the final report of .
Investigation of this case under section 173, Cr.P.C. That the petitioner has not fired at the deceased rather he was driving the motorcycle and his co-accused has fired at the deceased with his pistol; that no weapon of offence was recovered from the petitioner and recovery of pistol was effected from co-accused of the petitioner namely Waqas alias Viky; that in the circumstances, case against the petitioner is one of further inquiry into his guilt and he is entitled for the bail.
4. On the other hand, learned Deputy District Public Prosecutor assisted by learned counsel for the complainant opposing this bail petition contends that earlier the petitioner has withdrawn his application for the same relief before this Court on 2411-2011 and now without fresh ground he is not entitled for the bail. Further contends that although the petitioner is not nominated in the F.Lk, but he has duly been nominated in the supplementary statement of the complainant on the basis of information furnished to him by two P.Ws. Namely Muhammad Saqlain and Muhammad Rizwan; that opinion of the police is not binding upon the court; that non-recovery of weapon of offence from the petitioner is mala fide on the part of the police; that the offence falls within the prohibitory clause of section 497, Cr.P.C; that the petitioner has fully participated in the occurrence, therefore, he is not entitled for the bail.
5. Heard. Record perused.
6. Be that as it may, the petitioner is not nominated in the F.I.R and he was subsequently involved in this case through supplementary statement of the complainant. Even in the supplementary statement, no specific injury to the deceased has been attributed to the petitioner and there is collective allegation against the petitioner and his co-accused Waqas alias Viky that they both fired at the deceased. The police has opined in the final report of investigation of this case under section 173., Cr.P.C. That the petitioner has not fired at the deceased rather he was driving the motorcycle and his co-accused Waqas alias Viky has fired at the deceased with his pistol. No weapon of offence was recovered from the petitioner and the pistol was recovered from co- accused of the petitioner namely Waqas alias Viky. The evidentiary value of the supplementary statement of the complainant against the petitioner as well as his vicarious liability in this occurrence can validly be determined by the learned trial Court after recording of some evidence.
Prima facie, case against the petitioner falls within the purview of subsection (2) of section 497, Cr.P.C. And is one of further inquiry into his guilt. Investigating Officer, present before the Court, confirms that the I petitioner has no previous criminal record.
7. As far as withdrawal of the earlier bail petition i.e, Crimnal Miscellaneous No,14448-B of 2011 is concerned, suffice it to say that the same was simply dismissed as withdrawn and was not decided on merits.
8. In view of all above, this petition is accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs,200,000 (Rupees two hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned trial Court.
9. It is, however, clarified that observations made hereinabove are just tentative in nature and strictly confined to the disposal of this bail petition.