NIAZ alias NAZOO and another vs THE STATE
This matter comes before the Lahore High Court through a criminal petition filed by Niaz alias Nazoo and Jamal seeking post-arrest bail in case F.I.R. No. 117 of 2000 registered under sections 302, 109, 148, and 34 of the Pakistan Penal Code at Police Station Sahooka, District Vehari. The core legal question concerns whether the petitioners are entitled to post-arrest bail when their names are absent from the F.I.R. and initial statements, a delay of over a month occurred before a witness implicated them with a general allegation while admitting she did not witness the occurrence, no recoveries were made from them, and police investigation found them innocent. The court held that the allegations against the petitioners require further inquiry and their case falls within the purview of section 497(2) of the Code of Criminal Procedure. The key principle laid down is that post-arrest bail is warranted where the incriminating material is weak, delayed, uncorroborated by recoveries, contradicted by police investigation, and raises sufficient grounds for further inquiry into the guilt of the accused.
- Whether an accused whose name is missing from the F.I.R. and initial statements is entitled to post-arrest bail?
- Does a delayed statement implicating the accused after a lapse of one and a half months justify further inquiry under section 497(2) of the Code of Criminal Procedure 1898?
- What is the effect of a police investigation finding the accused innocent when considering a post-arrest bail application?
- Section 302, Pakistan Penal Code
- Section 109, Pakistan Penal Code
- Section 148, Pakistan Penal Code
- Section 34, Pakistan Penal Code
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' Through this petition, Niaz alias Nazoo son of Lal and Jamal son of Nadir, petitioners, have sought their post-arrest bail in a case F.I.R. No,117 of 2000 dated 3-6-2000 registered at Police Station Sahooka, District Vehari, under sections 302. 109, 148 and 34, P. P .O.
2. According to the F.I.R., four persons namely Allah Ditta son of Nazar, Madad Ali alias Maddi, Noor Ahmad alias Nooru and Mumtaz alias Fauji alias Fayyaz, armed with fire-arm weapons caused death of Falak Sher, real brother of the complainant. According to F.I.R., the occurrence was witnessed by the complainant alongwith his brother Bashir Ahmad and Ghafoor Ahmed P.Ws. And Mst. Bashiran wife of the deceased. Supplementary statement of Nasir Ahmad complainant was also recorded on the same day i,e, 3-6-2000. According to his statement Falak Sher was also given injuries by the barrels and butts of the guns. The petitioners were arrested in this case on 19-7-2000 after the statement of Mst. Bashiran, which was recorded for the first time on 17-7-2000.
3. I have heard the learned counsel for the parties and gone through the record. It has been noticed that neither the names of the petitioners have been mentioned in the F.I.R. Nor in any statement of the P.Ws., which were recorded on the date of occurrence i,e, 3-6-2000. Statement of Mst. Bashiran was recorded after about 1-1/2 months of the occurrence, wherein she has levelled a general allegation and has conceded that she did not see the occurrence herself. It has been conceded by the learned State counsel after going through the record that, no recovery has been effected from the petitioners and only incriminating evidence against the petitioner is available in the statement of Mst. Bashiran and that according to the investigation of the D.S.P., the petitioners were found to be innocent.
4. I have also gone through the order passed by the Additional Sessions Judge, Burewala, dated 9- 4-2001, wherein he without mentioning any reason dismissed the bail application of the petitioners and has only referred the order, which has been passed in an anticipatory bail petition moved by their co-accused on 26-10-2000. The learned Additional Sessions Judge has not applied his mind that the consideration for pre-arrest bail and post-arrest bail are totally different.
5. For what has been discussed above, the allegation levelled against the petitioners need further probe and inquiry and their case falls within the purview of subsection (2) of section 497, Cr.P.C., therefore, I am inclined to release the petitioners on bail, subject to their furnishing bail bonds in the sum of Rs,1,00,000 (Rupees one lac) each, with one surety each in the like amount to the satisfaction of the trial Court.