AURANGZEB and 4 others vs THE STATE and others
This petition for leave to appeal arose from an order of the High Court which cancelled the bail granted to the petitioners by the Additional Sessions Judge. The prosecution case involved an armed attack at night resulting in a fatality and injuries, with identification of the accused made in the moonlight. The petitioners contended that the High Court misapplied the law on bail by requiring positive proof of innocence, and pointed out that the injured witnesses had not recognized their assailants during the investigation. Additionally, the medical evidence indicated the use of different weapons, which was inconsistent with the prosecution's narrative, and the investigation had been conducted by two different agencies with conflicting statements. The Supreme Court converted the petition into an appeal and allowed it, holding that the general nature of the allegations, the lack of identification by the injured witnesses, and the discrepancies in the medical and investigative evidence made the petitioners' involvement a matter of further inquiry, thereby justifying the grant of bail.
- Whether bail can be cancelled where the injured witnesses failed to identify the accused during the investigation?
- Does a conflict in medical evidence regarding the dimensions of injuries and the weapons used justify the grant of bail under Section 497 of the Code of Criminal Procedure 1898?
- Is the High Court correct in requiring material showing the accused is not guilty as a prerequisite for maintaining bail under Section 497 of the Code of Criminal Procedure 1898?
- Section 497, Code of Criminal Procedure 1898
- Section 164, Code of Criminal Procedure 1898
ORDER
' ABDUL QADEER CHAUDHRY, J.---On 26-7-1988 at about 11-00 hours, Munawar Khan, complainant, lodged a report at Police Station Nara to. The effect that he, along with. His mother, Wt. Shahzadi Jan deceased, and other members of his family were asleep in the Verandah of his house when he woke up on the barking of the village dogs. According to him, it was about 12.15 midnight when after some while the six accused (petitioner and one Tanveer Akbar) appeared whom he identified in the moolight. Aurangzch opened the fire with which the mother of the petitioner was fatally hit. The second shot was fired by Muhammad Urfan which hit the son of the petitioner and then the remaining, accused, also fired shots causing injuries to his son Muhammad Iqbal and daughter Shamim Jan. The motive attributed in the report was criminal litigation between the parties. In that the nephew of the complainant Muhammad Ajab is charged for attempted murder. The complainant mentioned Mst. Faram Jan and nephew Muhammad Ajab as having witnessed the occurrence. It is alleged that the accused after the alleged firing, made good their escape.
2. A case was registered vide F.I.R. No, 62 dated 26-7-1988. All the accused applied for bail before arrest which was rejected by the learned Additional Sessions Judge, Abbottabad, vide his order dated 17-9-1988. All the accused were arrested by the police. After their arrest they applied for their release on bail but the learned Magistrate vide his order dated 25-9-1988 dismissed the bail application. They unsuccessfully approached the learned Additional Sessions Judge, Abbottabad.
Their request for bail was turned down y the learned Additional Sessions Judge vide order dated 21-12-1988. They again ade an attempt for bail but their application was rejected by the Magistrate vide is order dated 28-2-1989. However, on 19-3-1989, the learned Additional Sessions Judge, Abbottabad, accepted their application and released the etitioners on bail.
3. The complainant Munawar Khan filed an application before the High Court for the cancellation of bail granted to the accused. A learned Judge of the High Court by means of order dated 13-9-1989 cancelled the bail granted to the petitioners. The petitioners now seek leave to appeal from the order dated 13-9-1989 passed by the learned High Court. It is stated at the Bar that the application of Aurangzeb and Mohammad Urfan petitioners herein, has already been dismissed.
4. The invetigation in this case was conducted by two agencies and the complainant attributed the offence to another set of accused in the investigation conducted by the C.I.A. His statement under section 164, Cr.P.C. Was also recorded. He filed an application before the Chief Minister that the same was obtained through maltreatment and torture. In this occurrence two types of arms have been used. The learned counsel for the petitioners has taken exception to the following observation of the learned Judge of the High Court that "No such material available on the record has been brought to my notice as to give rise to a reasonable ground to believe that they are not guilty of the offence they are charged with". The learned counsel submitted that this observation is based on misconception of law as under Section 497, Cr.P.C. Bail cannot be granted if there is reasonable ground to believe that the accused has committed an offence punishable with death or imprisonment for life or imprisonment for more than 10 years.
5. There are general allegations against the petitioners. It is stated that the petitioners had injured Muhammad Iqbal, Mst. Shamim Jan. Muhammad Iqbal and Shamim Jan had been examined during the course of investigation and they had not recognised their assailants. The identification was made in the moonlight. It may also be noted that according to the prosecution two injured were sleeping on one cot but while one injured had received injury in the dimension of 1/4" the other injured had received injuries in the dimension of 1-1/2" showing thereby that they had been fired at with different weapons.
6. We have heard the learned counsel for the petitioners and the learned Additional Advocate- General for the State. The petition is converted into an appeal and is accepted. The aforementioned petitioners are admitted to bail in the sum of Rs, 20,000 with two sureties in the like amount to the satisfaction of the Ilaqa Magistrate. Any observation on the merits of the case is not binding on the trial Court.