MUHAMMAD AHMAD and another vs STATE through AAG and another
This is a post-arrest bail application filed by the accused petitioners facing charges under sections 302, 324, and 337-F(iv)/34 of the Pakistan Penal Code 1860, along with section 15 of the Arms Ordinance 1965, arising from an FIR registered in District Buner. The core legal questions involved whether the petitioners were entitled to bail on the grounds of a cross-version FIR, contradictions in the evidence, and upon a tentative assessment of the material. The Peshawar High Court held that the mere existence of a cross FIR does not automatically entitle an accused to bail as a matter of right, and that facts of every cross case must be tentatively scrutinized on their own merits. Finding that the petitioners were prima facie connected with a heinous crime falling within the prohibitory clause and that trial had already commenced, the Court dismissed the bail petition, reinforcing the principle that deep appreciation of evidence is to be avoided at the bail stage.
- Whether bail can be claimed as a matter of right merely on the ground that a cross FIR has been registered?
- Does the existence of a cross-version automatically establish a case of self-defence warranting the grant of bail?
- To what extent can a court delve into the appreciation of ocular and medical evidence while deciding a bail application?
- Whether an accused prima facie connected with an offence falling within the prohibitory limb of Section 497 of the Code of Criminal Procedure 1898 is entitled to bail?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 337-F(iv), Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 15, Arms Ordinance 1965
- Section 497, Code of Criminal Procedure 1898
MUHAMMAD DAUD KHAN, J.---Accused/petitioners charged in case FIR No, 1115 dated 22-11-2015, under sections 302, 324, 337-F(iv)/34, P.P.C. Read with section 15, AA of PS Nawagai District Buner, was refused bail by the learned lower Court vide its order dated 18-01-2016. They have moved this further application through their counsel for their release on bail.
2. The allegations against the accused/petitioners as per FIR referred to above are that they on 22- 11-2015 at about 1600 Hours, duly armed with fire-arms and in furtherance of their common intention attempted at the life of the complainant Habib un Nabi, Sahib un Nabi and Rehman Zada, which proved effective. Later on, brother of complainant Sahib un Nabi succumbed to his injuries and died.
3. Arguments heard and record perused.
4. In the present case record would reveal that the occurrence took place on 22-11-2015 at about 1600 hours whereas the report has been lodged on the same day at about 1830 hours. Habib un Nabi having stamp of injuries on his person is the complainant in the present case who has charged accused/petitioners for commission of the crime with specific motive behind the offence which is a quarrel/altercation on the same day.
Again the Investigation Officer during the course of investigation recovered the weapon of offence i.e, .30 bore pistol from accused/petitioner Muhammad Ahmad and also recovered 05 empties of .30 bore during spot inspection from the place of occurrence.
So far as this contention of the learned counsel for the petitioners that there is glaring contradictions between the ocular account, medical evidence and entries made in the site plan is concerned, suffice it to say that Courts while setting on a bail plea are not supposed to go into the deep appreciation of evidence as it is the job of the trial Court where trial of the accused has already been commenced inasmuch as statements of 02 PWs have also been recorded.
So far as plea of cross version of the learned counsel for petitioners that against the same offence another FIR # 1154 on the same day has also been lodged by the mother and wife of accused/petitioner Muhammad Ahmad and Habib Rasool respectively is concerned, suffice to say that plea of cross version invariably, carries phenomena of self-defence or otherwise in it and when from record, it is not discernible that who has aggressed and who has acted in self-defence, the parties are normally allowed bail. But in the instant case, on tentative assessment of the evidence, no such circumstance can be gathered except cross FIR where only allegations of cloths morning were levelled. By raising the plea of cross-version, the occurrence is admitted. When prosecution evidence prima facie connects the accused with commission of crime, entailing capital punishment and he himself admits the occurrence by taking plea of cross version, then why mere cross FIR should be accepted as license for grant of bail, particularly, in view of prevailing law and order situation in society. Accused of every cross case cannot claim bail as a matter of right.
Rather, facts of every cross case are to be tentatively scrutinized and assessed and then to be decided on its own merits. In this regard case of 'Nisar Muhammad Wassan and another V. The State' (1992 SCM R 501) and 'Aril Din v. Amil Khan and another' (2005 SCM R 1402) may be referred.
In view of the available record petitioners/accused are prima facie connected with the commission of crime which comes within the prohibitory limbs of section 497, Cr.P.C. And this being the position the petition for the grant of bail stands dismissed.