AZHAR ALI vs THE STATE
This matter concerns a bail application filed by the petitioner, Azhar Ali, who was charged with offences under sections 324, 337-F(iv), 452, and 34 of the Pakistan Penal Code 1860, following an incident of alleged house trespass and firing. The core legal question was whether the petitioner was entitled to post-arrest bail given the nature of the injuries caused, the lack of recovery of empty casings from the scene, the petitioner's six-month incarceration without trial progress, and the fact that the alleged offences did not fall within the prohibitory clause of the Code of Criminal Procedure 1898. The Court held that the petitioner was entitled to bail. The ratio of the decision rests on the principle that where offences charged do not fall within the prohibitory clause, and the accused has undergone a substantial period of pre-trial confinement without criminal antecedents, bail should generally be granted. The Court further noted that incarceration should not be used as a form of punishment before the conclusion of the trial.
- Is an accused entitled to bail when the alleged offences do not fall within the prohibitory clause of the relevant criminal procedure laws?
- Does the failure to recover empty casings from the scene of occurrence create a prima facie doubt regarding the prosecution's version of events?
- Can an accused be denied bail solely on the basis of an investigation report that contradicts the initial police findings?
- Section 324, Pakistan Penal Code 1860
- Section 337-F(iv), Pakistan Penal Code 1860
- Section 452, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
' The petitioner is an accused of offences under sections 324/337- F(iv)/452/34, P.P.C. Vide F.I.R.
No,240 of 1999, dated 24-11-1999 registered at the instance of Umar Hayat with Police Station Sadar, Sangla Hill, District Sheikhupura.
2. It was alleged, inter alia, that on the night intervening 22nd and 23rd of November, 1999, the complainant and his son Zahid Mahmood alongwith Shahzad Ahmad were sitting in the Bathik of their Haveli. At about 10-30 p.m. Azhar All alongwith Sarfraz Ahmad co-accused accompanied by two unknown persons scaled over the wall of the Haveli and thereafter, Azhar identified Zahid Mahmood in the light of the torch and exhorted the petitioner Azhar to kill Zahid Mahmood and fired a shot which hit him of his right wrist. Thereafter, it is alleged that all the assailants kept on firing and they saved their lives by lying down on the floor.
3. The bail has been sought on the grounds that from the facts and circumstances given in the no offence under section 324, P.P.C. Is constituted because the single shot, has been attributed to the petitioner which was not on the vital part, if he and his co-accused intended to commit murder there was nothing to prevent them; that no empty was recovered from the place of 'occurrence which primarily negates the prosecution version that there was indiscriminate firing; that the petitioner is in the judicial lock-up for the last more than six months but no progress has been made by the prosecution towards conclusion of the trial and lastly that the petitioner was declared innocent during investigation conducted by the D.S.P., Sangla Hill Circle, District Sheikhupura.
4. The bail has been opposed by the learned counsel for the complainant as well as by the learned counsel for the State on the grounds that section 452, P.P.C. Has been made applicable; that the investigation conducted by the D.S.P., was not only illegality but also mala fide as the same was taken up after submission of challan when the Court was seized of the matter; that the learned Additional Sessions Judge had assigned very cogent reasons for not taking into consideration the opinion of the D.S.P. And lastly that the petitioner as well as companions mounted assault in the house after committing trespass, therefore, he does not deserve concession of bail.
5. As far as application of section 324, P.P.C. Is concerned, it is argued by the learned counsel that the petitioner and his companions if really intended t commit murder there was nothing to prevent them from accomplishing their design. Similarly, the argument that no empty was recovered from the place of occurrence, prima facie, negates the prosecution version. As regard the remaining sections. It is argued that the same are not covered by the prohibitory clause and the general rule is that the bail is allowed to an accused-person especially when he has undergone a substantive part of the confinement in Jail. I have called for the judicial file. I have examined the medico-legal report and find that an injury i,e, Ghayr-Jafiah Mudihah has been caused. The same is punishable upto five years. The offence under section 452, P.P.C. Is also not hit by the prohibitory clause.
Considering that the petitioner is in the judicial lock-up for the last more than six months, has no criminal antecedents and he cannot be kept in confinement as a matter of punishment, therefore, I admit him to bail on his furnishing bail bonds in the sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of the learned trial Court. The record will be taken back to day.
Cited by 1 case
- MUHAMMAD AKBAR alias GHULAM AKBAR vs THE STATE 2007 YLR 1313