ZAHEER AHMED vs The STATE
This matter concerns an application for post-arrest bail filed by the applicant, Zaheer Ahmed, who is charged under Sections 302 and 34 of the Pakistan Penal Code 1860 for his alleged involvement in a murder case. The core legal question was whether the applicant was entitled to bail given the conflicting evidence, including a second police investigation report declaring him innocent and a ballistic report suggesting the recovered weapon did not match the crime scene evidence. The Court held that the applicant was not entitled to bail, reasoning that the FIR assigned a specific role to the applicant and that the recovery of the weapon and shell casing provided sufficient prima facie evidence linking him to the offense. The Court emphasized that at the bail stage, only a tentative assessment of evidence is permissible, and deeper appreciation of evidence, such as evaluating the validity of a second investigation report or the ballistic findings, is reserved for the trial court. The principle laid down is that police investigation opinions are not binding on the court during bail proceedings, and recovery evidence, while corroborative, creates a prima facie connection sufficient to deny bail.
- Is a second police investigation report declaring an accused innocent binding upon the court during bail proceedings?
- Does the court conduct a deeper appreciation of evidence or a tentative assessment when deciding a bail application?
- Can bail be denied when there is sufficient prima facie material linking the accused to the offense despite conflicting investigation reports?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
' SALAHUDDIN PANHWAR, J.---Through instant application, applicant seeks post arrest bail in Crime No.77/2012 registered at Police Station Phuleli, Hyderabad under sections 302/34, P.P.C.
2. Precisely, relevant facts are that complainant Nazeer Ahmed lodged FIR, contending therein that on 17-9-2012 at about 1100 hours deceased Hidayatullah along with his brother-in-law Dodo Khan, after taking the articles, proceeded on motorcycle from market towards house. During that period he received a phone call from Dodo Khan who disclosed that he and Hidayatullah were proceeding on motorcycle towards Faqeer-ka-Pir. Hidayatullah was riding the motorcycle when they reached near speed breaker of Pakistan chowk, Afandi where four persons Azhar Pirzada, Zaheer Pirzada, Shaman and Hassan Pirzada were available. Out of them, Azhar and Zaheer caused 4/5 straight fire shots with intention to kill Hidayatullah and in result thereof Hidayatullah received one injury on his chest and they both fell down; accused escaped away.
3. Learned counsel for the applicant inter alia contends that though the name of applicant is mentioned in the FIR with allegation that he along with co-accused caused 4/5 fire shots but admittedly deceased received only one injury, therefore, as to who caused the fatal injury is a question which is to be decided after recording evidence; witness Dodo was not available at the time of incident, with this regard learned counsel has referred Page No.85 i.e. Roznamcha register, showing therein that at 8-40 a.m. Dodo Khan was available at CIA center; recovery of 9 mm pistol was effected from the applicant but ballistic report reflects that same is dissimilar; second investigation was carried out wherein applicant was declared innocent. In support of his contentions, learned counsel has relied upon 1980 SCM R 784, 1997 SCM R 251, 2009 YLR 472, PLD 2014 SC 458 and 2004 SCM R 864.
4. Conversely, learned A.P.G. Has argued that specific role is assigned to the applicant; recovery of pistol as well as recovery of one 9 mm shell was effected from the spot.
5. Before dilating upon the merits of the case, it is worth to mention here that it is settled proposition of law that while deciding the bail application only tentative assessment is permissible under the law and deeper appreciation cannot be looked into because the same may result in causing prejudice to case of either sides. Further it is also well settled principle of law that in Criminal Administration of Justice, each and every case is to be decided on its own facts and circumstances. Candidly, name of the applicant transpires in the FIR with specific role that he caused injury from his 9 mm pistol, recovery of 9 mm pistol was effected from him coupled with recovery of one shell of 9 mm along with two other shells of .30 bore pistol from the site which prima facie connect the applicant with commission of the offence with which he is charged. Since it is settled law that status of recovery is always corroborative in nature and a conviction, even in absence of such corroborative evidence, can legally sustain, therefore, it would not be proper to give an opinion regarding plea of dissimilarity of weapon, recovered from possession of the accused at this stage and it is the function of trial court to determine the same at the end of trial.
Regarding second investigation report, it would suffice to say that the opinion of police is not binding upon the Court even while deciding the bail application. It is matter of record that deceased received only one injury but allegation of firing is against the applicant is also there. The plea of alibi and claim of presence of witness Dodo to be at police station (not at place of incident) have been brought on record through course of second investigation. The second Investigation Officer has attempted to create smoke on screen in order to hide some facts in favour of the applicant but as already stated that such opinion is not of binding nature nor it would be proper to examine the legality of such document (s) as this will amount to deeper appreciation which is not permissible under the law. Since, there appears sufficient material prima facie linking the applicant with the commission of the offence with which he stands charged, thereby I am of the considered view that applicant is not entitled for post arrest bail; and same is dismissed. However, the trial Court is hereby directed to proceed with the matter and preferably conclude the same within three months, thereafter, applicant will be at liberty to move a fresh bail application on fresh grounds, if so desires.
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