Muhammad Ramzan vs The State, etc
This matter arises from a petition for leave to appeal against the order of the High Court denying post-arrest bail to the petitioner in case FIR No. 325/2020 registered under sections 302, 148, and 149 of the Pakistan Penal Code 1860. The core legal question concerns whether statements of witnesses recorded within the case diary (zimni) under section 172 of the Code of Criminal Procedure 1898 lose their character as statements under section 161 of the Code of Criminal Procedure 1898. The Supreme Court held that embodying a witness's statement in the case diary instead of recording it separately is at best a procedural lapse by the Investigating Officer, and the statement does not lose its character as a statement under section 161 of the Code of Criminal Procedure 1898. The Court laid down the principle that if an Investigating Officer records a witness statement while compiling the case diary, such statement continues to qualify as a statement under section 161, and further held that where the Investigating Officer states the accused was present at the site but not involved in the commission of the offence or armed with a weapon, sufficient grounds for further inquiry are made out, warranting the grant of post-arrest bail.
- Does a witness statement recorded by an Investigating Officer in the case diary lose its character as a statement under section 161 of the Code of Criminal Procedure 1898?
- What is the legal distinction between statements recorded under section 161 and information or opinions formed under section 172 of the Code of Criminal Procedure 1898?
- Does the presence of an accused at the crime scene without a weapon or active involvement, as stated by the Investigating Officer, constitute grounds for further inquiry under section 497(2) of the Code of Criminal Procedure 1898?
- Section 302, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 172, Code of Criminal Procedure 1898
- Section 161, Code of Criminal Procedure 1898
- Section 161(3), Code of Criminal Procedure 1898
ORDER
Syed Mansoor Ali Shah, J. Petitioner seeks leave against the order dated 12.7.2021, wherein post arrest bail in case FIR No.325/2020, under sections 302, 148 and 149, PPC, PS Shah Jamal, district Muzaf fargarh, was denied to the petitioner by the High Court.
2. We have heard the learned counsel for the petitioner , as well as, the learned Additional Prosecutor General and the Investigating Officer (IO). It has been categorically stated before us by the IO that on the basis of the statements of eight independent witnesses recorded by him, the petitioner , even though present at the site of the occurrence, was neither involved in the commission of the offence nor was he carrying any weapon. At this juncture, learned Additional Prosecutor General vehemently pointed out that the statement of witnesses referred to by the IO have been recorded in the case diary (zimni ) prepared under section 172 of the Cr.P.C and do not constitute statement of a witness under section 161, Cr .P.C.
3. Under section 161(3) Cr.P.C. the Police officer is to reduce in writing any statement made to him in the course of examination of any person supposed to be acquainted with the facts and circumstances of the case. The Police Officer is to make a separate record of the statement of each such person but in case the statement of such a person, recorded by the IO, is embodied in the case diary instead of being recorded separately , it is at best a procedural lapse on the part of the IO but the statement itself does not lose its character as a statement under section 161, Cr.P.C. The distinction betwe en sections 161 and 172, Cr.P.C is that while one deals with the recording of the statement of witnesses / persons acquainted with the facts and circumstances of the case, the other is the information or opinion of the IO which he gathers and forms during the course of the investigation. So if while recording his opinion in the case diary , the IO also records the statement of a witness, any such statement continues to pass for a statement under section 161 Cr.P.C. and does not become a part of the case diary under section 172 Cr .P.C.1
4. We have also noticed that two of the co-accused namely Mukhtiar Hussain and Ghulam Murtaza had a specific role in the crime report but were granted bail by the High Court on similar statement of the Police that they while present at the site of occurrence were not involved in the commission of the offence and were not armed with any weapon.
5. In view of the statement of the investigation officer supported by the statement of the witnesses discussed above, we are of the view that there are sufficient grounds for further inquiry into the guilt of the petitioner . The petitioner (Muhammed Ramzan) is, therefore, admitted to post-arrest bail, subject to furnishing bail bond in the sum of Rs.100,000/- with one surety in the like amount to the satisfaction of the trial Court. This petition is converted into appeal and allowed accordingly . See: Zulfikar Ali Bhutto v. State, PLD 1979 SC 53;Nasrullah v. State, 1980 PCr.LJ 5; Muhammad Akbar v. State, 1985 PCr.L.J 338; Muhammad Tahir v. State, 1986 PCr.LJ 3025; Khalid Pervez v. The State, 1989 PCr.LJ 1824; Nazar Muhammad v. Mushtaq Ahmad, PLD 1996 Lahore 277; Muhammad Riaz v. State, and PLD 2003 Lahore 290. Vide order dated 27.01.2021 in Muhktiar Hussain vs. State, etc - Crl.Misc 7627-B/2020 and vide order dated 29.03.2021 in Ghulam Murtaza vs. State, etc - Crl.Misc 659-B/2021.