ATHAR and anothers vs THE STATE
The petitioners, Athar and Javed alias Mamda, sought post-arrest bail in a case registered under Section 302/34 of the Pakistan Penal Code 1860, concerning the alleged administration of a poisonous substance to a thirteen or fourteen-year-old boy resulting in his death. The core legal question was whether the petitioners were entitled to post-arrest bail given the lack of direct evidence, absence of attributed motive, and their finding of innocence during police investigation. The Lahore High Court held that the absence of direct evidence, lack of motive, and the opinion of innocence formed by the investigating officers brought the case within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898. The court laid down the principle that when accused persons are found innocent during investigation and direct evidence is lacking, their case falls under subsection (2) of Section 497, warranting the grant of post-arrest bail.
- Whether the absence of direct evidence and motive during investigation makes a case one of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Does a finding of innocence by police investigating officers entitle an accused to post-arrest bail in a murder case?
- Can bail be granted under Section 497(2) of the Code of Criminal Procedure 1898 when no incriminating articles are recovered from the accused?
- Section 302/34, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
' Petitioners Athar and Javed alias Mamda through the instant petition seek post-arrest bail in case F.I.R. No,263, dated 17-11-2002, registered under section 302/34, P.P.C. With Police Station Qureshi, District Lodhran.
2. Briefly the prosecution case as per F.I.R. Is that on 16-11-2002 at about 4-30 p.m. Athar, Javed alias Mamda and Muhammad Akmal in furtherance of their common intention have administered some poisonous substance to Muhammad Safdar, 13/14 old, the brother of the complainant, who died as a result of the same.
' The motive behind the occurrence is that Akmal was on friendly terms with the deceased, who cut of the same with him and instead developed with one Muhammad Wasaq. The same was felt by Muhammad Akmal, who alongwith others had committed his murder.
3. It has been contended on their behalf that they have falsely been roped in; that there is no direct evidence on the record against them that they had administered any poisonous matter to the deceased; that no motive for the murder of the deceased is ascribed to them; that no incriminating article was recovered from them; that during the investigation, it has been found that they are innocent and have nothing to do with the murder of the deceased and that is why they have been left to the mercy of the Court; and that they are behind the bars and previous non- convicts.
4. Conversely, learned State Counsel has opposed the petition on the ground that they are named in the F.I.R.; that they as per material available on record in furtherance of their common intention have administered some poisonous matter to the deceased, who died as consequence of the same.
5. I have carefully considered the submissions made from both sides with the help of available record.
6. Allegedly, they alongwith their co-accused Muhammad Akmal had administered some poisonous matter to the deceased, which resulted into his death. Admittedly, there is no direct evidence against them that they had administered any such poisonous matter to the deceased, which resulted into his death. The motive is also not ascribed to them. Admittedly, they in the investigation by S.H.O. And the D.S.P. Concerned have been found innocent and left to the mercy of the Court. All these facts make their case essentially as one of further inquiry into their guilt and the same therefore, is covered under subsection (2) of section 497, Cr.P.C.
7. They are behind the bars and stated to be previous non-convicts. In these circumstances, I accept this petition and admit them to bail provided they furnish 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 learned Sessions Judge, Lodhran/trial Court.