Haji MUHAMMAD vs STATE and another
This matter involves a criminal petition filed by Haji Muhammad seeking post-arrest bail in connection with FIR No. 78/2015 registered under Section 302, 148, and 149 of the Pakistan Penal Code 1860 at Police Station Kangan Pur, District Kasur, for the alleged Qatal-e-Amd of Amjad Ali. The core legal question concerns whether the petitioner is entitled to post-arrest bail on statutory further inquiry grounds under Section 497(2) of the Code of Criminal Procedure 1898, particularly considering his advanced age, severe medical condition involving left hemiplegia and cerebral atrophy, inconsequential weapon recovery, and protracted incarceration without trial conclusion. The Lahore High Court accepted the petition and granted post-arrest bail, holding that the petitioner's medical condition and the circumstances surrounding the case attracted the provisions of Section 497(2) Cr.P.C. for further probe. The key principle laid down is that extraordinary care and caution must be exercised by courts while deciding bail in capital cases, balancing tentative assessment of the material with humanitarian medical grounds and the principle that an accused cannot be detained indefinitely when further inquiry is warranted.
- Whether an accused suffering from severe chronic illness and paralysis is entitled to post-arrest bail on medical grounds?
- Does the lack of matching empties render the recovery of a weapon inconsequential at the bail stage?
- When does the case of an accused fall within the scope of further inquiry attracting subsection (2) of Section 497 of the Code of Criminal Procedure 1898?
- Can an accused be kept behind bars for an indefinite period pending trial when investigation is complete?
- Section 302, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
Through this petition, Haji Muhammad, the petitioner , seeks post-arrest bail in case FIR No, 78/2015, dated 29.03.2015 lodged under Section 302/148/149, PPC at Police Station Kangan Pur , District Kasur .
2. Precisely , the allegation against the petitioner is that he alongwith his co-accused while armed with deadly weapons committed Qatal-e-Amd of Amjad Ali, deceased.
3. Heard. Record perused.
4. In compliance of order passed by this Court on 25.02.2019, Medical Officer, District Jail, Kasur has submitted his report. The relevant portion of the medical report is reproduced herein below: "He is an old man of 60 years of age having paralysis of left side of body (left Hemiplegia). He is admitted in jail hospital since admission in the jail dated 23.07.2018. He was examined by District Physician District Headquarter Hospital, Kasur . There is history of cerebrovascular accident one year back when he developed weakness of left side of body . On examination left planter is going up and right planter going down. On CT scan Bran Hypodence an area suggestive of infects are noted in bilateral frontarietal lobes. Ventricular and extra ventricular CSF spaces are dilated implying cerebral atrophy . No mid line shift is observed. Calvarium is unremarkable. Visualized paranasal sinuses are normally aerated. He diagnos ed him Cerebral Atrophy and bilateral. Frontoparietal infarct. He is having weakness of left upper and lower limb since one year before arrival into this jail. He cannot walk without support.
Symptomatic treatment is being provided from jail hospital as advised by the Physical. He needs best possible treatment from tertiary care hospital outside this jail."
5. As far as recovery of rifle effected from the petitioner is concerned, it is incon sequential because the empties were not collected from the spot. Therefore, said recovery is not helpful to the case of prosecution at this stage.
Furthermore, the applicability of offence under section 302, PPC and vicarious liability of the petitioner will be determined by the learned trial Court after recording of the evidence. Reliance is placed upon "Per Bux v. The State" ( 2012 SCMR 1955 ).
6. In the attending circumstances, the question regarding the petitioner's guilt in the matter definitely calls for further probe or inquiry . So, the mischief subsection (2) of section 497, Cr.P.C. is attracted to his case, as per law laid down by the August Supreme Court of Pakistan in cases reported as Ehsan-ullah v . The State ( 2012 SCMR 1 137).
"9. To curtail the liberty of a person is a serious step in law, therefore, the Judge shall apply judicial mind with deep thought for reaching at a fair and proper conclusion albeit tentatively however , this exercise shall not be carried out in vacuum or in a flimsy and casual manner as that will defeat the ends of justice because if the accused charged, is ultimately acquitted at the trial then no reparation or compensation can be awarded to him for the long incarceration, as the provisions of Criminal Procedure code and the scheme of law on the subject do not provide for such arrangements to repair the loss, caused to an accused person, detaining him in Jail without just cause and reasonable ground. Therefore, extraordinary care and caution shall be exercised by the Judges in the course of granting or refusing to grant bail to an accused person, charged for offence(s) punishable with capital punishment The Courts are equally required to make tentative assessment with pure judicial approach of all the materials available on record, whether it goes in favour of the prosecution or in favour of the defence before making a decision."
7. The investigation is complete. The petitioner is behind the bars since 17.07.2018 and he cannot be kept behind the bars for an indefinite period, as it would not serve any useful purpose. Relianc e can be placed on the cases of Syed Khalid Hussain Shah versus The State and another (2014 SCMR 12) and Imtiaz Ahmed versus The State (PLD 2009 Lahore 14 ).
8. For the above reasons as well as considering the medical ground of the petition er, this petition is accepted and petitioner is allowed post-arrest bail subject to his furnishing bail bonds in the sum of Rs,2,00,000/- (rupees two hundred thousands) with one surety in the like amount to the satisfaction of learned trial Court.
9. However , it is clarified that the observations made hereinabove are tentative in nature and strictly confined to the disposal of this bail petition.