MUHAMMAD BOOTA Versus THE STATE
The petitioner sought post-arrest bail in a murder case registered under sections 147, 149, 109, and 302 of the Pakistan Penal Code 1860. The core legal question was whether the petitioner was entitled to bail despite being placed in Column No. 2 of the challan by the investigating officer, who had declared him innocent based on a special oath (Qasam, Nian). The court dismissed the bail petition, holding that the complainant and eye-witnesses consistently implicated the petitioner, attributing a specific, fatal injury to him which was corroborated by the post-mortem report. The court emphasized that an investigating officer cannot assume the role of a judge to determine guilt or innocence, and that the finding of innocence based on a special oath was legally flawed, leading to departmental action against the officer. The court reaffirmed that the trial court is the sole authority to adjudge guilt or innocence after evaluating evidence, and since the trial had commenced and the petitioner faced specific allegations, bail was refused.
- Can an investigating officer determine the guilt or innocence of an accused based on a special oath?
- Does the placement of an accused in Column No. 2 of the challan automatically entitle them to bail?
- Is the trial court bound by the opinion of the investigating officer regarding the innocence of an accused?
- Section 147, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 302, Pakistan Penal Code 1860
ORDER
The petitioner Muhammad Boota son of Ghulam Muhammad seeks his post-arrest bail in case F.I.R. No.561 dated 13-10-2003 registered at Police Station Bhikhi, District Sheikhupura, for offences under sections 147, 149, 109 and 302, P.P.C.
2. The case of the complainant Nargas Bibi as unfolded in the F.I.R. was that on the day of occurrence at about 9-30 in the morning her husband Muhammad Hanif left for Sheikhupura City on his bicycle where he used to supply milk; she along with her daughter Qaisra Bibi and brother-in-law Muhammad Latif were watering the paddy field; that Muhammad Hanif had reached the road leading to Bahrrianwala about three acres away, when the petitioner along with his co-accused Muhammad Latif son of anonymous, Zameer Iqbal and Muhammad Sharif, all armed with axes, while Ghulam Dastagir armed with a Chhuri emerged from the paddy field of Akbar where they were sitting in ambush; they forcibly made. Muhammad Hanif to get down from the bicycle; she along with Qaisara Bibi and Muhammad Latif (her husband's younger brother) ran towards him and beseeched the accused persons to have mercy on her husband; Muhammad Latif; raised Lalkara that Muhammad Hanif be taught a lesson for accusing them of cattle theft; Muhammad Sharif caused an axe blow which landed on the neck of her husband; Muhammad Boota petitioner inflicted axe blow which landed on the left side of his forehead; Muhammad Latif caused an axe blow on the left ear of her husband whereas Zameer Iqbal and Ghulam Dastgir caused blows with their respective weapons on the head of her husband who after sustaining serious injuries fell down; she and her daughter came forward to rescue Muhammad Hanif whereupon the accused persons while brandishing their weapons declared that if anyone came near them he would be done to death. Muhammad Hanif died at the spot. The motive according to the F.I.R. was that Muhammad Hanif deceased had litigation with Muhammad Tariq son of Muhammad Boota petitioner and Afzaal son of Siraj Din and on account of the said litigation the accused persons had stolen seven animals belonging to the complainant party about 7/8 months ago. Muhammad Hanif deceased had a suspicion on the accused persons which grudge was being nourished by the accused persons who caused his murder.
3. The petitioner was arrested on 25-12-2003 and is in custody. His application for grant of post-arrest bail did not find favour with the learned Additional Sessions Judge who turned down the same vide order, dated 26-3-2004. Hence the instant petition.
4. I have heard Mr. M.S. Shad, the learned counsel for the petitioner. Mian Pervaiz Hussain, the learned counsel for the complainant and Malik Manzoor Ahmad, Advocate for the State and have also gone through the record brought by Ghulam Murtaza, A.S.-I.
5. The learned counsel for the petitioner argued that the petitioner was innocent and had been falsely implicated in this case; that during the course of investigation the petitioner had been. found to be innocent and had been placed in Column No.2 of the challan; that the Investigating Officer on the basis of special oath came to the conclusion that the petitioner was innocent; that no recovery had been effected from him and that two accused persons namely Tariq and Afzaal have been released on bail, therefore, the principle of consistency demands that the petitioner be also extended the same concession.
6. On the other hand the learned counsel for the complainant vehemently argued that it was a day time occurrence and the F.I.R. was recorded within one hour of the occurrence, therefore, there was no question of any mistaken identity or false implication. He also argued that the petitioner has been attributed a specific role in the F.I.R. and the injury caused by him has duly been noted by the doctor who conducted the post-mortem examination to be fatal. He also argued that P.Ws. are resolutely sticking to their stance and that even otherwise in view of the facts and circumstances of the case the petitioner was vicariously liable for his act.
7. I have considered the arguments of the learned counsel at considerable length.
8. The perusal of the record reveals that the complainant as also the other eye-witnesses fully implicate the petitioner. He has been attributed a specific role of having caused a serious injury on the forehead of the deceased which finds full support from the post-mortem report. I have also noticed that the Sub-Inspector who had held the petitioner to be innocent during the investigation on the basis of Qasam, Nian, had been departmentally proceeded against for conducting a defective and dishonest investigation in this particular case. It was only on account of the said Qasam, Nian that the petitioner had been held to be innocent, however, his name finds mention in Column No.2 of the challan. He was summoned by the trial Court to face trial where he along with his co-accused have been charge-sheeted on 5-6-2004. The trial has commenced' and the defence has already obtained two dates on account of non -availability of their counsel. Reliance of the learned counsel for the complainant on the case of Imtiaz Ahmad and others v. The State 1986 SCMR 192, advances his contention that the Investigating Officer could not assume the role of a Judge and that the innocence or the guilt has to be adjudged by the trial Court after recording the evidence of the witnesses produced by the parties and evaluating the same. The precedents relied upon by the learned counsel for the petitioner Zulfiqar Ali v. The State 1996 MLD 1457 and Muhammad Arif Hussain v. State 1999 MLD 939 proceed on distinguishable facts and do no advance the case of the petitioner for the grant of bail. I see no merit in this petition which is accordingly dismissed.
N.H.Q./M-552/L Bail refused.