Kishwar Abbas Shah alias Kas vs The State etc
This petition for post-arrest bail arises from a criminal case registered under Sections 324 and 34 of the Pakistan Penal Code 1860, involving allegations of a murderous assault. The core legal question was whether the petitioner was entitled to bail given the conflicting versions of the incident presented by the complainant and the investigating agency. The court observed that while the complainant alleged the petitioner caused firearm injuries, two successive police investigations concluded the petitioner was present at the scene but empty-handed, playing no active role. Additionally, the court noted a 19-day delay in recording the statements of injured witnesses, rendering the prosecution's case prima facie questionable. Holding that the existence of two conflicting versions of the incident necessitates further inquiry into the petitioner's guilt, the court granted bail. The key principle laid down is that where the prosecution's own investigation presents conflicting versions regarding the accused's role or presence at the crime scene, the case against the accused becomes one of further inquiry, justifying the grant of bail pending trial.
- Does the existence of two conflicting versions of an incident between the complainant and the investigating agency render a case one of further inquiry?
- Can an accused be granted bail when the investigating agency finds them present at the scene but empty-handed, contrary to the complainant's allegation of active participation?
- Does a significant delay in recording the statements of injured witnesses affect the prima facie case for the purpose of bail?
- Section 497, Code of Criminal Procedure 1898
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 337-D, Pakistan Penal Code 1860
- Section 337-F(ii), Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
Through this petition under Section 497 Cr.P.C., petitioner Kishwar Abbas Shah alias Kashi has sought post arrest bail in case FIR No.425 dated 25.10.2017, in respect of offences under Sections 324 & 34 PPC, registered at Police Station, Daira Deen Panah District Muzaffargarh.
2. The allegation against the petitioner, as contained in the crime report, is that on 25.10.2017 at about 2:30 p.m., he alongwith his co-accused, while armed with pistols, in furtherance of their common intention, had launched murderous assault upon Khadim Hussain, brother of the complainant and caused fire arm injuries on different parts of his body.
Hence, this case was registered.
3. I have heard learned counsel for the petitioner , learned Deputy Prosecutor General appearing for the State assisted by learned counsel for the complainant and have perused the record with their able assistance.
4. The petitioner was saddled with the responsibility of making two fire shots causing injuries at the right side of ribs (thorax) and the right thigh of injured Khadim Hussain. The medico-legal certificate of the said injured witness shows that the injury sustained by him at the chest was falling within the ambit of Section 337-D PPC and the other injury at his right thigh was falling within the ambit of Section 337-F(ii) PPC. The statement of injured witnesses was recorded with the delay of 19-days, which prima facie renders it to be legally unacceptable as held in case titled "MUHAMMAD ASIF versus The ST ATE" (2017 SCMR 486 )".
5. Admittedly , during investigation, nothing was recovered from the petitioner 's possession. Furthermore, during two successive investigations, it was found that the petitioner was though present at the place of occurrence yet empty-handed without playing any role whatsoever and one of the co-accused namely Imran was declared to be not involved in this case. This shows that it is a case of two versions, one put by the complainant and the eye witnesses including the injured one that the petitioner had caused two fire arm injuries to the injured witness and the second one of the investigating agency during two successive investigations wherein he was found present at the place of occurrence empty-handed. The aforesaid facts and circumstances of the case render it to be one of further inquiry into the guilt of the petitioner in view of the dictum laid down in case titled "EHSAN ULLAH versus THE ST ATE" (2012 SCMR 1 137) wherein it was held as under:- "It is pertinent to mention that the investigating agency had reached at a definite conclusion that the petitioner was not even present at the scene of the crime at the relevant time and as a matter of fact he had provided behind-the-scene abetment to his co-accused for commission of the alleged offences and this is why the petitioner has been recommended for trial only in respect of an offence under section 109 PPC. This shows that in the present case the prosecution itself has two versions vis--vis the petitioner, first of the complainant party according to which the petitioner was present at the spot and had resorted to firing and second of the investigating agency according to which the petitioner was not present at the spot and he was abetting his co-accused from behind the scene. All the considerations surely render the case against the petitioner one of further inquiry into his guilt."
6. The petitioner was arrested in this case on 15.12.2017 and he is behind the bars since then without any substantial progress in the conclusion of the trial and, thus, he cannot be kept in the judicial lockup for an indefinite period.
In view of above, the petition in hand is allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.100,000/- (rupees one lac) with one surety in the like amount to the satisfaction of the trial Court.