ZIA alias MITHU vs The STATE and another
This matter concerns a petition for post-arrest bail filed by an accused charged with murder under Section 302, Pakistan Penal Code 1860. The core legal question was whether the petitioner was entitled to bail given the existence of conflicting versions of the incident presented by the complainant and the investigating agency, and the petitioner's status as a juvenile at the time of the occurrence. The Court held that the discrepancy between the FIR, which alleged intentional murder, and the investigation, which suggested qatl-i-khata under Section 319, Pakistan Penal Code 1860, rendered the case one of further inquiry under Section 497(2), Code of Criminal Procedure 1898. The Court emphasized that when the prosecution itself presents conflicting versions, the accused is entitled to the benefit of doubt at the bail stage. Furthermore, the Court noted the petitioner's status as a previous non-convict and the lack of progress in the trial. Consequently, the Court granted bail, establishing the principle that the existence of two conflicting versions of an incident necessitates further inquiry, thereby entitling the accused to bail as a matter of right rather than concession.
- Does the existence of two conflicting versions of an incident between the FIR and the investigation report constitute a case of further inquiry under Section 497(2), Code of Criminal Procedure 1898?
- Is the heinousness of an offence a sufficient ground to refuse bail if the accused is otherwise entitled to it under the law?
- Can the benefit of doubt be extended to an accused at the post-arrest bail stage?
- Section 497, Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 319, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER
ABDUL SAMI KHAN, J.---Through this petition under section 497, Cr.P.C. the petitioner has sought bail after arrest in case FIR No.98/17 dated 30.07.2017 under sections 302, 34, P.P.C., registered at Police Station Karianwala, District Gujrat.
2. I have heard the arguments advanced by learned counsel for the parties and have gone through the record with their able assistance. This is bail after arrest and only tentative assessment is required at this stage. It has been noticed by this Court that although petitioner is named in FIR, yet the fact remains that no specific role has been assigned to him therein and it is mentioned that he along with co-accused made fire shots and one fire shot hit on the head of Ali Hamza deceased.
During investigation, it has come on the surface of record that the petitioner was a juvenile at the time of occurrence and it was not an intentional murder of Ali Hamza deceased rather it was qatl- i-khata and the investigating officer has prepared the challan under section 319, P.P.C. and submitted the same before the Prosecution Department, whereupon section 302, P.P.C. was added on the opinion of learned Assistant District Public Prosecutor, so taking into consideration the above mentioned facts and circumstances of the case, the instant case has become a case of two versions i.e. one put forward by the complainant in FIR and the other came on record during investigation and the question as to which version is correct shall be determined by learned trial court after recording evidence. Reliance is placed upon "Ehsan Ullah v. The State" (2012 SCM R 1137), wherein the Hon'ble. Supreme Court of Pakistan has observed as under:- "This shows that in the present case the prosecution itself has two versions vis-a-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 form behind the scene. All these considerations surely render the case against the petitioner one of further inquiry into his guilt."
Reliance can also be placed upon pronouncement of Hon'ble Supreme Court of Pakistan in case titled "Zaigham Ashraf v. State and others" (2016 SCM R 18), wherein the apex Court has been pleased to observe as under:- "Keeping in view the two conflicting versions; one given by the complainant in the FIR and the other by the Investigating Agency based on documentary evidence with regard to the plea of alibi, the case of the present petitioner has become certainly one of further inquiry, falling within the ambit of subsection (2) of section 497, Cr.P.C., where grant of bail becomes the right of accused and it is not a grace or concession, to be given by the Court. In the absence of any exceptional ground or reason, denial of bail in such a case would amount to exercise a discretion in a. manner, not warranted by law and principle of justice.
Admittedly the petitioner is previous non-convict and never involved in any other case of such like nature; he is behind the bars since 21.08.2017 but his trial has not seen any fruitful progress as yet.
The complainant has also filed private complaint which is still at initiate stage and only cursory evidence is recorded as yet, which shows that there is no chance of early conclusion of the trial of case. Investigation of the case to the extent of the petitioner is complete and he is no more required for further investigation. Mere heinousness of offence is no ground to refuse bail if otherwise the accused becomes entitled to the concession of bail. It is also settled law that benefit of doubt can be given to the accused even at bail stage, therefore, no useful purpose would be served by keeping the petitioner behind the bars at this stage.
3. For what has been discussed above, taking guidance from the above mentioned case-law, the case of the petitioner becomes one of further inquiry covered by subsection (2) of section 497, Cr.P.C. This petition is, therefore, allowed and the petitioner is granted bail after arrest subject to his furnishing bail bond in the sum of Rs.200,000/- (Rupees two hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned trial court.
4. The observations made above are tentative in nature and are strictly confined to the decision of this bail petition only.