MUHAMMAD JAMIL vs THE STATE
This matter involves three consolidated post-arrest bail petitions arising out of a single First Information Report concerning a murder case where numerous accused persons were implicated. The core legal question was whether the petitioners were entitled to post-arrest bail where fatal injuries were attributed to a co-accused who was not before the court and where no crime empties corresponding to the weapons of certain petitioners were recovered from the scene. The Lahore High Court held that two of the petitioners, whose specific weapons matched no recovered crime empties at the spot, made out a prima facie case for further inquiry under subsection (2) of Section 497 of the Code of Criminal Procedure 1898 and granted them bail, while dismissing the bail applications of the remaining petitioners whose weapon empties were recovered from the crime scene and whose involvement was prima facie established. The key principle laid down is that the absence of corroborative recovery of crime empties matching a petitioner's alleged weapon, coupled with the attribution of the fatal injury to another non-petitioner, can bring the case within the scope of further inquiry warranting the grant of bail.
- Whether the absence of crime empties matching a petitioner's weapon makes the case one of further inquiry under subsection (2) of Section 497 of the Code of Criminal Procedure 1898?
- Is bail to be granted when the fatal injury is attributed to a co-accused who is not before the court?
- Does the recovery of weapon empties from the spot defeat a claim for bail by members of an unlawful assembly?
- Section 149, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' This order will dispose of three bail petitions bearing Nos.2665/B, 2666/B and 2667/B of '2002 having arisen out of one F . I . R.
2. Facts of the case need not be reiterated here because the same have been given while disposing of Crl. Misc. Nos. 975/B and 1201/B of 2002.
3. In support of these petitions, learned counsel submits that for one injury, 42 persons have been roped in out of whom 25 are named as assailants, three are accused of abetment while the remaining are unknown. Further submits that fatal injury to the deceased is attributed to Tahir Saleem, who is not petitioner before this Court. Adds that Nadeem Raza, petitioner in Crl. Misc.
No,2666/B of 2002 and Muhammad Jamil petitioner in Crl. Misc. No, 2667/B of 2002 were armed with .7 MM rifle but no crime empty of the said fire-arm was recovered from the spot. Further adds that so far as Amjad Farooq and Muhammad Fayyaz petitioners are concerned though they were armed with .12, bore gun and .8 MM rifle, but they did not cause any injury to the deceased. Lastly submits that challan having been submitted in Court, the petitioners are no more required for further investigation and that they are behind the bars for the last 4 months. In support of this submissions, learned counsel for the petitioners has relied upon 1991 SCM R 1630 and 1998 SCM R 454.
4. Learned counsel for the State assisted by learned counsel for the complainant submits that petitioners are named in the F.I.R., they were the members of unlawful assembly; section 149, P.P.C.
Is fully applicable,' recoveries have been effected from the petitioners; large quantity of empties was recovered from the spot; challan has been submitted before the trial Court though re- investigation has started by the S.P Range Crimes, Gujranwala under the order of the Inspector General of Police but concede that no crime empty of rifle .7 M.M was recovered from the spot.
5. I have heard learned counsel for the parties and have gone through the record. According to F.I.R. Itself, Muhammad Fayyaz, petitioner was armed with .12 bore gun, Amjad Farooq petitioner was armed with rifle .8 M.M. Nadeem and Jamil petitioners were armed with rifles .7 M.M but none of the petitioners caused any injury to the deceased because the fatal shot is attributed to Tahir Saleem who is not petitioner before me. Recovery of 143 crime empties from the spot shows the large number of the accused and use of different fire-arms. So far as Nadeem Raza and Muhammad Jamil, petitioners are concerned, according to F.I.R. They were armed with rifles .7 M.M but no empty of rifle .7 M.M was recovered from the spot. To my mind, prima facie, the case of Nadeem Raza and Muhammad Jamil appears to be one of further inquiry within the meaning of subsection (2) to section 497, Cr.P.C. They both are allowed bail subject to their furnishing bail bonds in the sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of trial Court.
6. So far as Amjad Farooq and Muhammad Fayyaz petitioners are concerned they were armed with .12 bore gun and rifle .8 M.M . Recovery of crime empties .12 bore gun and rifle .8 M.M was effected from the spot. Prima facie they are found to be involved in the case, so to my mind, the case of Amjad Farooq and Muhammad Fayyaz is not a fit for exercise of discretion in their favour.
Accordingly, bail applications to their extent are dismissed.