GHIYAS UD DIN alias MOON vs The STATE and another
This matter arises from a criminal petition seeking post-arrest bail in a case registered under sections 302, 324, 148, 149, and various clauses of section 337 of the Pakistan Penal Code at Police Station Golra Sharif, Islamabad. The core legal question concerns whether the petitioner was entitled to post-arrest bail given his nomination in the FIR, the dying statement of the deceased implicating him, and discrepancies pointed out in the investigation. The Islamabad High Court held that the petitioner was specifically nominated with an active role in the commission of the offence and that his name and role were further corroborated by the statement of the deceased recorded in the presence of a medical officer. The court emphasized that deeper appreciation of evidence is impermissible at the bail stage and dismissed the petition, establishing that active participation in a heinous crime supported by direct dying statements disentitles an accused to post-arrest bail.
- Whether an accused nominated in the FIR with an active role in a heinous crime is entitled to post-arrest bail?
- Can a statement of the deceased recorded under section 161 of the Code of Criminal Procedure 1898 serve as a strong ground to refuse bail?
- Does a cross-version with a conflicting time of occurrence constitute a valid cross-version warranting bail?
- Whether deeper appreciation of evidence can be undertaken at the bail stage?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
' NOOR-UL-HAQ N. QURESHI, J.---Through this Criminal Misc. The petitioner seeks post arrest bail in case FIR No. 140 dated 23.05.2014, registered under sections 302/324/148/149/337-F(v)/ 337- F(ii)/337-D(C)/337-A(ii)/337-A(i), P.P.C., at Police Station Golra Sharif, Islamabad.
2. Brief facts of the case as narrated in the FIR are that dn 22.05.2014 at about 08:00 pm, the petitioner along with other co-accused came to the house of complainant Asif Khan. Rab Nawaz co-accused knocked at the door and raised Lalkara. When complainant along with Shahzad Khan, Nazakat Khan and Saeed Khan came out, Umar Khan fired at him with .30 bore pistol which hit on his left thigh, resultantly, he fell down. The fire shot made by Pervaiz Khan hit Shahzad Khan, who succumbed to the injuries later on. Present petitioner fired with Kalashnikov. Saeed Khan was injured by fire-arm injury caused by Haji Raiz Khan and Nabeel Khan fired at Nazakat Khan.
Mubashir and other persons armed with clubs and fire-arm weapons made indiscriminate firing upon the complainant party. Hence, this FIR.
3. Learned counsel for the petitioner has argued that the petitioner is innocent and has falsely been implicated in this case; that involvement of the petitioner is a result of casting a wider net; that innocence of the petitioner can further be assessed from the fact that he is not ascribed any specific role in commission of the offence; that subsequent to his arrest, petitioner was subjected to thorough investigation wherein nothing incriminating suggesting guilt of the petitioner came on record; that the offences mentioned in the FIR do not constitute as the necessary ingredients in this respect are missing from the prosecution case; that case of the petitioner falls within the ambit of subsection (2) of section 497, Cr.P.C.; that there is no apprehension of his avoiding the process of law if enlarged on bail. He prayed for grant of bail.
4. Learned State Counsel assisted by learned counsel for the complainant has argued that the petitioner is involved in a case of heinous nature. He is nominated in the FIR with active role.
Charges levelled against the petitioner constitute offence comes within the ambit of prohibitory clause of section 497, Cr.P.C. Recovery has also been effected from the accused party. He has relied upon case law reported in 2007 PCr.LJ 744 (Lahore), 2012 PCr.LJ 94 (Islamabad), 1997 PLD SC 545, 2005 SCM R 1402 (Supreme Court of Pakistan) and 2005 PCr.LJ 791 (Peshawar).
5. I have heard the arguments, perused the record as well as case law submitted.
6. The hard facts drawn from the material for which the petitioner seeks relief of bail are explicitly clear. Occurrence took place on A 22.05.2014. FIR lodged with a delay of eight hours. Statements of PWs disclosing name of Moon as Ghiyas ud Din were recorded on 18.06.2014. Six empties of 45 bore were recovered from the scene of incident. On 07.06.2014, four crime empties of .30 bore and one of Kalashnikov were produced by one PW. Kalashnikov was not recovered. In cross-version Ghiyas alias Moon not cited as PW. These considerations were examined minutely and it transpired that there were applications ed against Investigating Officer who left lapses in the prosecution case.
Benefit of such lapses cannot be extended to the I accused.
7. So for non- citing of Ghiyas as PW in the cross version that fact is emerged from the record keeping in view the time of occurrence shown in the respective FIRs. Apparently, time of occurrence shown by the accused party is altogether different to that shown by the complainant party. The complainant has shown time of occurrence as 8:00 pm whereas accused party in their FIR shown it as 10:30 am. Under no circumstances, it can be considered as cross version. Otherwise cross version by itself is no ground for bail as held by Hon'ble Supreme Court of Pakistan in 2005 SCM R 1402. Name of the accused was disclosed by the deceased himself before his death when his statement under section 161, Cr.P.C. Was recorded with the permission of doctor duly attested by the medical officer shows recorded in his presence. In his statement, he specifically nominated the petitioner with active role of causing injury, therefore, in presence of such a strong piece of evidence, bail cannot be granted to the petitioner.
8. From the perusal of record and material placed before the Court, the petitioner does not deserve for grant of bail. Arguments advanced on behalf of petitioner need deeper appreciation which cannot be considered at bail state. Therefore, I am not inclined to grant bail to the petitioner, hence, instant bail petition is dismissed.