MUHAMMAD RAFIQUE and another vs The STATE
This is a post-arrest bail application filed by the accused in a case registered under Sections 324 and 34 of the Pakistan Penal Code 1860. The core legal question was whether the accused were entitled to bail given the absence of their names in the initial FIR and the subsequent naming of the accused by prosecution witnesses during the investigation. The High Court granted bail to the applicants, holding that the case against them required further inquiry. The court emphasized that the omission of the accused's names in the FIR, despite the parties being well-acquainted and residing in the same locality, coupled with the vague nature of the subsequent statements recorded under Section 161 of the Code of Criminal Procedure 1898, created sufficient doubt to warrant the concession of bail. The court also noted the existence of cross-cases and political enmity between the parties, further supporting the conclusion that the applicants' involvement necessitated deeper judicial scrutiny at the trial stage rather than continued incarceration.
- Does the omission of an accused's name in the FIR, when the parties are well-acquainted, constitute grounds for further inquiry in a bail application?
- Can bail be granted where prosecution witnesses name the accused only in subsequent statements under Section 161 of the Code of Criminal Procedure 1898?
- Is the existence of cross-cases and political enmity a relevant factor for the court to consider when deciding a post-arrest bail application?
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
ORDER
1. ' ANWAR HUSSAIN, J.---Applicant Muhammad Rafiq and Junaid seek Post Arrest Bail in Crime No, 39 of 2014, registered at Police Station City Hyderabad under Sections 324 and 34, P.P.C. Earlier the Applicants/Accused moved Bail Application before the Trial Court which was declined. Hence this Bail Application.
2. ' Brief facts of the case are that on 9.5.2014, Complainant Rizwan Mawiya lodged FIR at above Police Station, stating therein that he is doing the work of Motorcycles and on the same day at about 12:20 a.m. He along with his friend namely Faheem were standing and chit chatting near the bathroom of Haji Shah Masjid, while his younger brother Amir along with his friends namely Sufiyan, Sunny and Shehryar were standing near the cabin of Faheem, which was kept on the corner of Masjid Street. In the meantime, four boys riding on two motorcycles came over there, out of which one was known to the Complainant as Naqash while the three were unidentified. Naqash who had pistol in his hand was sitting on the rear seat of one motorcycle, while the unknown person who was on the rear seat of another motorcycle was also armed with pistol. On reaching they started straight firing as a result of which Sufiyan sustained injury at his abdomen and fell down, Amir sustained injury on both legs and fell down; the other unknown person fired upon Sunny and Shehryar, which hit on their back and they also fell down. On the commotion, the nearby people gathered as such the Accused persons creating the atmosphere of terror fled away. Thereafter, the injured were taken to hospital and after treatment Complainant lodged the FIR that Naqash and three unknown terrorists made murderous assault upon the brother of Complainant and his friends.
3. ' The police recorded the statement of P.Ws., brother of complainant and his friends who disclosed the names of present Applicants and others and as such police started searching for arrest of the said Accused. The Applicant Muhammad Rafiq and Junaid filed Bail Before Arrest Application before the VIth Additional Sessions Judge, ,Hyderabad wherein at the first instance Interim Pre- Arrest Bail was granted which ultimately not confirmed by learned VIIIth Additional Sessions Judge.
4. Hyderabad vide Order dated 18.9.2015 and the Applicants were taken into custody. The Accused Persons filed Bail After Arrest Application which was dismissed by learned VIIIth Additional Sessions Judge, Hyderabad vide Order dated 22.9.2015.
5. ' Learned counsel for the Applicant sought bail on the ground that (1) the Applicants/Accused have not committed the alleged offence with which they are charged (2) the story narrated in the FIR is false, fabricated and concocted one (3) the names of present Applicants/Accused do not appear in the FIR, in spite of the fact that the Applicants/Accused are residing in the same Muhallah and were very much known to the Complainant party (4) the P.W. Muhammad Amir and Shehryar are also residing and next door friend of the Applicants/Accused but while recording their statements under Section 161, Cr.P.C. Disclosed the names of Applicants/Accused, on the contrary in the FIR it was disclosed that unknown persons made assault (5) that there is a dispute and old political enmity between the parties as the complainant party belongs to Sepah-e-Sahaba whereas the Applicants/Accused belongs to MQM (6) the Applicants/Accused are innocent and have falsely been implicated in the above case due to old enmity. In view of the above grounds learned counsel sought bail in the case of being one of further inquiry.
6. ' Learned DPG opposed the grant of bail on the ground that the Applicant/ Accused have caused serious injuries to the complainant party with intention to kill and also create the atmosphere of terrorism hence they are not entitled for bail.
7. ' The complainant is present in person and states that he does not want to engage Advocate and learned DPG may argue on his behalf.
8. Admittedly, the names of present Applicants/Accused do not appear in the FIR, in spite of the fact that they are residing in the same Muhallah of the Complainant party and were very much known to them. The P.Ws. Namely Muhammad Amir and Shehryar are also residing in the same Muhallah of Applicants/Accused who did not give the names of Applicants at the time of registration of FIR, but disclosed their names subsequently at the time of recording 161, Cr.P.C. Statement, wherein the P.Ws who are brother and friends of the complainant have not deposed as to with whose firing they sustained injuries particularly and specifically in respect of the Applicants. The Accused party also lodged FIR No,
80. Of 2014 under Section 324, P. P.C. Against the complainant in which admittedly the complainant party is also on bail.
9. ' In view of the above, I am of the opinion that this case requires further inquiry and as such the Applicants were granted bail on 9.11.2015, by way of following order:-- "For the reasons to be recorded lateron, this Bail Application is allowed. The Applicants are enlarged bail subject to their furnishing solvent surety in the sum of Rs,2,00,000/- (Rupees Two Lac only) each and PR bond in the like amount to the satisfaction of Trial Court.
10. ' The above are the reasons of said short order of granting bail. This Bail Application stands disposed of.