NAZEER AHMED vs THE STATE
This post-arrest bail application arose under Sections 497 and 498 of the Code of Criminal Procedure 1898 in a case registered under Section 302/34 of the Pakistan Penal Code 1860. The prosecution alleged that two unidentified assailants shot the complainant's son near his main gate. The petitioner was not named in the initial First Information Report despite being a close relative of the complainant, but was subsequently nominated after the complainant altered his version through a writ petition and a private complaint. Furthermore, five police investigations found the petitioner innocent, and no incriminating recovery was made from him. The core legal question was whether the petitioner was entitled to bail under Section 497(2) of the Code of Criminal Procedure 1898 on the ground of further inquiry due to the complainant's shifted stance and lack of initial identification. The High Court granted bail, holding that the complainant's subsequent change of version created serious doubt, the resolution of which required trial evidence, and established that the benefit of doubt must accrue to the accused even at the bail stage.
- Whether an accused who is a close relative of the complainant is entitled to bail when not initially nominated in the First Information Report?
- Does a complainant's subsequent change of version create a ground for further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Can the benefit of doubt be extended to an accused person at the stage of deciding a bail application?
- Section 497, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
- Section 498, Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
Through this application under sections 497/498, Cr.P.C. Petitioner seeks bail after arrest in case F.I.R. No.443 registered on 4-12-2002 under section 302/34, P.P.C. At Police Station, Mumtaz Abad, District Multan on the application of Rana Mumtaz Ali.
2. The brief allegation mentioned in the F.I.R. Is that on 4-12-2001 at about 4-00 a.m. Complainant and his son Habib-ur---Rehman's were taking meals of 'Sehri', which was being served to them by his another son, namely Mujeeb-ur-Rehman's. In the meanwhile, they heard the noise of knocking the door whereupon the complainant and his son Habib-ur-Rehman's rushed towards the main gate and saw two persons while running out of the house whereas his son Mujeeb-ur--Rehman's was found lying in an injured condition due to firing near the main gate. Both the persons had succeeded in running away on motorcycle whereas Habib-ur-Rehman's succumbed to the injuries at the spot.
3. Learned counsel for the petitioner contends that in the five investigations so far conducted in this case the petitioner has been found innocent, but, the complainant and his son have nominated the petitioner as an accused person who is their close relative and there was no question of his identity if he had participated in the occurrence. Further contends that discharge report was prepared and he was presented before the Court, but the learned Magistrate did not agree with the same.
Learned counsel for the petitioner further contends that nothing was recovered from the petitioner and case falls within the purview of subsection (2) of section 497, Cr.P.C., hence, he is entitled to the giant of bail.
4. On the other hand, learned counsel representing the complainant argues that correct version of the complainant was not recorded in the F.I.R. By the police and he was constrained to file writ petition and his version was recorded in the month of September, 2002 after the direction of this Court. Further contends that private complaint has alsa been filed and the correct version has been reproduced in the said private complaint. Further contends that case of the petitioner falls within the prohibitory clause and he is not entitled to grant of bail.
5. Learned State Counsel also opposes this bail application vehemently.
6. I have heard the learned counsel for the parties and also perused the record with their assistance. Petitioner admittedly is not nominated in the F.I.R. Wherein the complainant stated that he had seen the two persons while running out of the house. It is also admitted position that the petitioner is close relative of the complainant and there was no question of misidentity of the petitioner if he had participated in the occurrence. It is also pertinent to mention here that during investigation nothing was recovered from the possession of the petitioner to connect him with the commission of the crime. Subsequently, complainant had changed his version and filed writ petition for recording of the same. Change of version by the complainant causes serious doubt in the prosecution case and which one version is correct will be seen at the trial after recording of evidence of the P.Ws. It. Is settled principle that benefit of doubt has to go to the accused at any stage. Hence, case of the petitioner is covered by subsection (2) of section 497, Cr.P.C. Being one of further, inquiry. In such circumstances, petitioner shall be released on bail subject to his furnishing bail bonds amounting to Rs.1,00,000 (Rupees one lac only) with two sureties each in the like amount to the satisfaction of learned trial Court.