RASHEED MASIH Versus THE STATE
This is a post-arrest bail petition arising from F.I.R. No. 44 dated 23-1-2005 registered under sections 337-A(ii), 337-F(i), 148, and 149 of the Pakistan Penal Code 1860 at Police Station Sadar Okara. The core legal question was whether the petitioner was entitled to post-arrest bail given the contradictions between ocular and medical evidence, unexplained delay in lodging the F.I.R., and an un-investigated counter-version involving injuries to the accused party. The Lahore High Court held that the case fell within the scope of further inquiry under section 497 of the Code of Criminal Procedure 1898, noting that medical evidence did not support the alleged sharp-edged weapon injury, injuries on the accused party were suppressed, and the question of who was the aggressor in the public scuffle remained to be determined at trial. The court laid down the principle that suppression of injuries on the defense side, variance between medical and ocular accounts, and a plausible counter-version regarding a free fight make out a case for further inquiry, entitling the accused to bail.
- Does a variance between ocular evidence and medical reports regarding the weapon used create a case for further inquiry under Section 497 of the Code of Criminal Procedure 1898?
- Whether the unexplained suppression of injuries sustained by the accused party in the F.I.R. entitles the petitioner to post-arrest bail?
- Is bail to be withheld as a punishment when the accused's further detention does not advance the prosecution's case and investigation is complete?
- Section 337-A(ii), Pakistan Penal Code 1860
- Section 337-F(i), Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
Petitioner was refused post‑arrest bail by the learned Magistrate on 22‑2‑2005 and by the learned Additional Sessions Judge on 4‑3‑2005 in case vide F.I.R. No.44, dated 23‑1‑2005 under sections 337‑A(ii), 337‑F(i), 148, 149, P.P.C. registered with Police Station Sadar Okara. He has now filed instant petition, for the same relief.
2. Charge against the petitioner is that he along with his co‑accused while equipped with lethal weapon assaulted the complainant and his companions, causing them injuries on different parts of their bodies. Petitioner was arrested on 6‑2‑2005 and after remaining on physical remand, has since been remitted to judicial lock‑up.
3. Learned counsel for the petitioner submitted that petitioner is absolutely innocent and has been involved in a false case out of animosity of the complainant/police. It was further submitted that according to the F.I.R. petitioner was equipped with hatchet with which he caused injury on the head of the complainant, but medical evidence in form of medico -legal report does not contain any injury with sharp‑edged weapon. It was further argued that petitioner has also a counter version of being aggressed by the complainant party as his co‑accused also suffered injuries at the hands of the complainant as is evident from the medico legal report of Parvez son of Siraj Masih, who was examined on the same day at 2‑45 p.m. According to his submissions, complainant in connivance with the police got the case registered and his counter version was not recorded maliciously. It was submitted with emphasis that fight it any was a free fight in a public thoroughfare and it is yet to be determined that who out of the parties was the aggressor which makes the case of the petitioner that of further inquiry. According to him, the offences charged did not fall within the prohibition, clause of section 497, Cr.P.C., hence the petitioner may be extended the concession of bail.
4. Bail was opposed with the arguments that petitioner is specifically named with attribution of specific injuries on the person of complainant/P.Ws., hence is not entitled to bail. It was further argued that petitioner caused grievous injury on the vital part of the body of the injured, hence having participated in the assault with common intention of his co‑accused, is not entitled to the relief prayed.
5. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the police record. There is no injury with sharp‑edged weapon on the person of the complainant and medical evidence is at variance to ocular stance of the prosecution. The F.I. R. was registered with an unexplained delay of 24 hours in spite of the fact that police station is closely located to the place of occurrence. Injury on the person of Parvez son of Siraj Masih and other injured persons front the petitioner's party have not been explained in the F.I.R. and this suppression negatively reflected on the prosecution story. Though the complainant had mentioned in the F.I.R, that accused took the complainant out of his house and assaulted him in a street, yet the scuffle was undisputedly occasioned in a public thoroughfare and there is no evidence on the file to show that who out of the parties is aggressor and this fact will be decided by the trial Court after recording of evidence and makes the case of the petitioner that of further inquiry. Petitioner joined the police investigation while on physical remand and his person is no more needed for investigation purpose. There is no probability of abscondence of the petitioner or his tampering with the prosecution evidence. Bail is not to be withheld as punishment and further detention of the petitioner would not advance prosecution case any more. Petitioner would face the sentence if ultimately convicted by the trial Court at the conclusion of the case.
6. For the reasons noted above, petitioner has made out a case for his post‑arrest bail in the case registered against him pending its trial. This petition is accordingly allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of the trial Court.
H.B.T./R‑128/L Bail granted.