MUHAMMAD RAFIQUE vs IFTIKHAR AHMAD and anothers
This petition for leave to appeal challenged a Lahore High Court order granting post-arrest bail to the respondent, who was accused of murder. The prosecution alleged that the respondent, armed with a 7MM rifle, fired a fatal shot at the deceased during a confrontation. The trial court had initially refused bail, citing the specific nomination of the accused in the F.I.R. and the nature of the fatal injury. However, the High Court granted bail, reasoning that the case required further inquiry under the Code of Criminal Procedure 1898. This conclusion was based on the unexplained five-week delay in recording the statements of eyewitnesses, potential discrepancies between the F.I.R. and subsequent statements, and the tentative possibility that the eyewitnesses themselves might have been involved in the shooting. The Supreme Court, upon review, declined to interfere with the High Court's discretionary order. It held that the High Court's exercise of discretion was neither fanciful nor arbitrary. The Supreme Court emphasized that the trial court must decide the case independently based on the evidence produced, without being influenced by the tentative observations made during the bail proceedings.
- Does an unexplained delay in recording witness statements under Section 161 of the Code of Criminal Procedure 1898 constitute grounds for further inquiry in a bail application?
- Can the Supreme Court interfere with a High Court's discretionary order granting bail if the order is not found to be fanciful or arbitrary?
- Should a trial court be influenced by tentative observations made by a High Court during the bail stage when deciding the merits of a criminal case?
- Section 161, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
' IRSHAD HASAN KHAN, J.---This petition for leave to appeal is directed against the judgment dated 3-5-1999, passed by Lahore High Court, Lahore in Criminal Miscellaneous 2157-B/1999.
2. Prosecution story, in brief, is that on 26-6-1998 at 6-00 p.m. The complainant/petitioner herein was present with his brother-in-law Muhammad Munir deceased at his house in village Loran when they heard a noise from outside that Iftikhar Ahmed, respondent herein and Shahbaz Ahmed co-accused had arrived in the street to kill Muhammad Nasir and Qaiser. The complainant along with Muhammad Munir came out of the house and saw Iftikhar Ahmed and Shahbaz Ahmed co- accused armed with 7 MM rifle and .30 bore pistol respectively were fighting with Qaiser and Nasir.
Munir prevented them from doing so whereupon Shahbaz said to Iftikhar that let Munir be thought a lesson to support his nephews. Iftikhar Ahmed fired a straight shot from his rifle 7MM, which hit on the right side of the chest of Munir, who succumbed to the injuries at the spot. The occurrence was also witnessed by Muhammad Sarwar and Muhammad Arshad P.Ws., who were attracted to the place of incident on hearing the fire reports.
3. Application of Iftikhar Ahmed respondent for grant of post-arrest bail, was declined by the learned Additional Sessions Judge, Gujrat vide order dated 18-11-1998, inter alia, on the ground that single fire-arm fatal shot at the right side of the chest of the deceased, was attributed to him and that he was specifically nominated in the F.I.R.
4. Being aggrieved with the said order, the respondent approached the High Court for grant of bail, which was allowed by the learned Judge in Chambers on the ground that the case required further inquiry. The learned Judge in Chambers after tentative assessment of the material on record observed that according to the complainant, Qaiser, Nasir, Iftikhar respondent and Shahbaz co- accused were quarrelling with one another when the incident of shooting took place. However, the eye-witnesses absconded immediately after the occurrence and did not appear Wore the police for almost five weeks. Their statements under section 161, Cr.P.C. Were recorded on 1-8-1998. No explanation was tendered as to why the statements of the above eye-witnesses, who were nephews of the deceased were not recorded earlier. The learned Judge in Chambers was of the tentative view that the eye-witnesses absconded as they might have accidentally shot at Munir deceased and for that purpose avoided to appear before the police. It was further noticed that the statement of the witnesses recorded under section 161, Cr.P.C. Were different from the contents of the F.I.R., in that, they had not attributed any specific role to the accused of shooting to death Murir Ahmed deceased.
' After tentative appraisal of all the relevant facts, the High Court came to the conclusion that the case of the petitioner was that of further inquiry on account of apparent "change of record" and unexplained absconcion of the eyewitnesses.
5. Mian Muhammad Akram Ranjha, learned counsel for the petitioner argued that the occurrence took place in broad day light; witnessed by the eye-witnesses and F.I.R. Was promptly lodged, the case, therefore, was not covered under section 497 (2), Cr.P.C. As a case of further inquiry, only because firearm weapon was not rifle 7MM but was '45 bore pistol as described in the investigation. The precise submission was that minor discrepancies would not ipso facto lead to the conclusion that respondent No.1 was not involved in the killing of an innocent person.
6. After hearing the learned counsel for the parties and perusing the available material on record, we do not find that the discretion exercised by the High Court in allowing the bail to the respondent was fanciful or arbitrary. Without expressing any opinion as to the merits of the case, lest it may prejudice the case of either party, we are not inclined to interfere with the discretionary order of the High Court granting bail to respondent No. 1. Needless to say that the trial Court shall decide the case on the basis of evidence produced before it by the parties, after independent application of its mind, justly, fairly and without being influenced by and tentative observation made by the High Court while granting bail to respondent No.1.
7. With the above observation, the petition is dismissed and leave declined.