SHAFI-UR-RAHMAN and another vs The STATE
This matter concerns a post-arrest bail application filed by two petitioners accused of double murder under Section 302/34 of the Pakistan Penal Code 1860. The core legal question was whether the petitioners were entitled to bail given the discrepancies between the FIR and the subsequent investigation, specifically regarding the weapon recovery and the involvement of the second petitioner. The Court observed that the FIR initially attributed the firing solely to the first petitioner, whereas subsequent police investigation implicated the second petitioner and recovered a weapon from him, contradicting the initial version. Furthermore, the Court noted the deceased male was found in the house of the first petitioner's father at an odd hour in an illicit liaison with the first petitioner's sister, raising issues regarding the circumstances of the crime and the potential quantum of sentence. Holding that these anomalies and the departure from the FIR version rendered the case one of further inquiry, the Court granted bail. It established the principle that when a case falls under the ambit of further inquiry, bail is a right rather than a concession.
- Does a significant departure from the initial version of the FIR entitle an accused to the benefit of bail?
- When does a criminal case fall within the ambit of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Is the grant of bail a matter of right or a matter of grace when a case is determined to be one of further inquiry?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER
MALIK HAQ NAWAZ, J.---The petitioners/accused have been booked for the above offences vide FIR No,02/15 of Police Station Jaglot under section 302/34, P.P.C. Dated 08-02-2015, on the complaint of AS! Muhammad Riaz, who reached at the place of occurrence immediately after the occurrence.
2. The brief facts of the case are that after receiving spy information the SHO Jaglot deputed ASI Muhammad Riaz to go to the place of occurrence i.e, the house of one Gul Zaman. On reaching the spot he found two dead bodies. The male deceased was identified as Wasi-ur-Rahman, while the female was identified as Mst. Gulshan daughter of one Gul Zaman, owner of the house. AS!
Muhammad Riaz was informed that the deceased Wasi-ur-Rahman intruded into the house of Gul Zaman and was engaged in sexual intercourse, when spotted by Shafi-ur-Rahman, who is son of Gul Zaman and real brother of deceased Mst. Gulshan. As per contents of FIR, the petitioner/accused Shafi-urRahman opened fire on both the deceased and murdered them. The accused flee from the place of occurrence after commission of crime. ASI Muhammad Riaz completed some codal formalities at the place of occurrence and then submitted a Murasala to SHO Jaglot for registration of FIR, which was accordingly registered. After registration of FIR, the investigation of the case was also entrusted to the said ASI, who arrested the petitioner/accused Shafi-ur-Rahman. During course of investigation the petitioner/accused Shafi-ur-Rahman disclosed that, he committed the murder of both the deceased with the help of his co-accused namely Wazir Ahmad. Petitioner/accused Wazir Ahmad went underground and was arrested later on.
3. The learned counsel for the petitioners/accused submitted, that, against the reflection of FIR, where fire was attributed to the petitioner/accused Shafi-ur-Rahman, the local police affected the recovery of .30 bore pistol on the pointation of petitioner Wazir Ahmed, whose name even does not figure in FIR and recovery of one "Sarya" (Iron rod) was effected on the pointation of petitioner Shafi-ur-Rehman, which negates whole of the prosecution story. He further submitted that there was no earthly reason for presence of deceased in the house of father of deceased Mst. Ghulshan in odd hours of night. There is no ocular evidence available on the file and mere recoveries of dead bodies from the house of father of petitioner, Shafi-ur-Rehman, would not be sufficient to connect the petitioners/accused with the crime. The learned counsel vehemently argued that the case is one of the further inquiry falling within the purview of section 497(2), Cr.P.C.
4. On the other hand the learned Dy. A.G., vehemently opposed the petition and stated that two persons have been murdered and petitioner Wazir Ahmad, remained absconder. Recoveries have also been effected on the pointation of both the petitioners/accused. Further challan of the case has been submitted in the Court, which disentitles the petitioners/accused for concession of bail.
5. The arguments of both the parties heard at length and record also perused with their able and valuable assistance. As evident from the FIR and not denied, that initially firing was attributed to petitioner Shafiur-Rahman and name of petitioner/accused Wazir Ahmad does not figure in the FIR. Petitioner/accused Shafi-ur-Rahman was arrested and on his disclosure during police investigation petitioner Wazir Ahmad was arrayed as an accused. The local police effected recovery of one iron rod .On the pointation of petitioner/accused Shafi-ur-Rahman and later on, on the arrest of Wazir Ahmad affected recovery of one .30 bore pistol from the petitioner/accused Wazir Ahmad, which is against the initial version of FIR. No doubt that FIR is not an encyclopedia and it is not necessary that it should contain all the details of the occurrence, but at the same time the Court may take the notice of it and any departure/deviation from the FIR, and the benefit of same will surely go to the accused, even at bail stage.
6. An other aspect of the case is that the deceased Wasi-ur-Rahman was present in the house of one Gul Zaman, father of the petitioner/accused Shafi-ur-Rahman at 01:00 a.m., of the fateful night.
His presence at the place of occurrence with the daughter of said Gul Zaman was in pursuit of illicit liaison and as per contents of the FIR, both the deceased were murdered, when found in objectionable condition.
7. The deceased intruded like a bull in the house of a stranger just to fulfill his lust and was done to death when engaged in sexual intercourse with the sister of petitioner/accused Shafi-ur-Rahman.
No earthly justification exists to justify the presence of deceaked in the house of one Gul Zaman, the father of deceased Mst. Gulshan.
8. Besides other some so many intricacies and anomalies involved in the case, in my humble view, the quantum of sentence also needs serious consideration, bringing the case within the ambit of further inquiry covered under section 497(2), Cr.P.C., if the story of prosecution is accepted in toto and accused are adjudged guilty after conclusion of trial.
9. When a case becomes one of the further inquiry, the accused becomes entitle for the grant of bail as a matter of right and not as a matter of grace/concession and bail facility cannot be denied to him on any other ground/pretext.
10. The nutshell of above discussion is that the petitioners/accused are allowed bail subject to furnishing of bail bonds in the sum of Rs,500,000/- (Rupees Five Lac only) with two sureties each in the like amount to the satisfaction of trial Court.