PLJ 2022 Cr.C. 1490
Benefit of doubt--
----Bail--No doubt, in a post arrest bail only tentative assessment is to be made and deeper appreciation or evaluation of evidence at this stage is neither desirable nor permissible but benefit of doubt can be extended to accused even at bail stage if facts of case so warrant.
[P. 1491] A
2021 SCMR 2011.
Two versions--
----Bail after arrest--Case of prosecution has become of two version one put forth by complainant in FIR, whereas other in shape of finding of investigating officer--This dichotomy will be determined by learned trial Court after recording and evaluating evidence that which of version is correct. [P. 1492] B
2012 SCMR 1137.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 302, 376, 496-A, 148, 149, 337-L(2)--Post-arrest bail, grant of--Allegation of--Armed with fire-arm weapons, house tresspassed, murdered, abducted and raped by co-accused--Case of two versions--Benefit of doubt--The petitioners are behind bars since their arrest--The investigation of this case to their extent has been completed. Nothing was recovered from Petitioner No.1--Nobody could be kept in jail for an indefinite period, therefore, further incarceration of petitioners would not serve any useful purpose--Mere heinousness of offence could not impede release of accused on bail if otherwise his guilt call for further probe, nor bail could be withheld as a strategy for punishment--Bail was allowed. [P. 1494] C
2019 SCMR 1914.
Mian Muhammad Tayyab Wattoo, Advocate for Petitioners.
Mr. Javed Iqbal Bhaaya, ADPP State.
Mirza Muhammad Azam, Advocate for Complainant.
Date of hearing: 5.1.2022.
PLJ 2022 Cr.C. 1490
[Lahore High Court, Bahawalpur Bench]
Present: Muhammad Tariq Nadeem, J.
MUHAMMAD JAVED etc.--Petitioners
versus
STATE etc.--Respondents
Crl. Misc. No. 4531-B of 2021, decided on 5.1.2022.
Order
By virtue of instant petition filed under Section 497, Cr.P.C., petitioners Muhammad Javed and Ghulam Haider alias Haider Ali have sought post-arrest bail in case FIR No.251 dated 06-09-2021, in respect of offences under Sections 302, 376, 496-A, 148,149, 337-L(2), PPC, registered at Police Station, Madrassa, District Bahawalnagar.
2. As per brief allegations levelled in the F.I.R against the petitioners are that they along with their co-accused while armed with firearm weapons trespassed into the house of complainant and murdered the son of complainant namely Jehangir and thereafter also abducted Mst. Madiha, the daughter of the complainant, who was subsequently also raped by co-accused Sardar alias Sardari. Hence, the above-mentioned FIR.
3. I have heard the the arguments advanced by the learned counsel for the petitioners as well as learned DPG assisted by learned counsel for the complainant meticulously and perused the record minutely with their able assistance.
4. No doubt, in a post arrest bail only tentative assessment is to be made and deeper appreciation or evaluation of evidence at this stage is neither desirable nor permissible but benefit of doubt can be extended to the accused even at bail stage if the facts of the case so warrant. Reliance is placed upon the case titled as “Resham Khan and another vs. The State” (2021 SCMR 2011) wherein the Hon’ble Supreme Court of Pakistan in Paragraph No.8 of the judgment has held as under:
“… The insight and astuteness of further inquiry is a question which must have some nexus with the result of the case for which a tentative assessment of the material on record is to be considered for reaching just conclusion. The case of further inquiry pre-supposes the tentative assessment which may create doubt with respect to the involvement of the accused in the crime. It is well settled that object of trial is to make an accused to face the trial and not to punish an under trial prisoner. The basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bar. Every accused is innocent until his guilt is proved and benefit of doubt can be extended to the accused even at bail stage if the facts of the case so warrant. The basic philosophy of criminal jurisprudence is that the prosecution has to prove its case beyond reasonable doubt and this principle applies at all stages including pre-trial and even at the time of deciding whether accused is entitled to bail or not …”
Similar view was reiterated in the case law “Muhammad Sarfraz Ansari vs. The State and others” (PLD 2021 SC 738) wherein it has been described as under:
“4. We are fully cognizant of the well-settled principle that at the bail stage the court is not to make deeper examination and appreciation of the evidence collected during investigation or to conduct anything in the nature of a preliminary trial to determine the accused’s guilt or innocence. However, for deciding the prayer of an accused for bail, the question whether or not there exist reasonable grounds for believing that he has committed the alleged offence cannot be decided in vacuum. The Court, for answering the said question, has to look at the material available on record when the bail is applied for and be satisfied that there is, or is not, prima facie, some tangible evidence which, if left unrebutted, may lead to the inference of the guilt of the accused ...”
5. It has straightaway been noticed that according to the narration of FIR, the role attributed to Muhammad Javed, Petitioner No.1 is that he made pistol fire shot, which landed on the right calf of Jahangir (deceased), whereas no role has been ascribed to Ghulam Haider alias Haider Ali, Petitioner No.2 in the FIR. Learned Law Officer after perusing the police file under instructions has apprised the Court that Investigating Officer has opined vide case Diary No. 45 dated 28-10-2021 that Muhammad Javed was merely present at the place of occurrence at the relevant time.
In the light of supra mentioned facts, case of prosecution has become of two version one put forth by the complainant in the FIR, whereas other in the shape of finding of the investigating officer. This dichotomy will be determined by the learned trial Court after recording and evaluating the evidence that which of the version is correct. Reliance can be placed upon the case laws titled as “Ehsan Ullah vs. The State” (2012 SCMR 1137) wherein it has been held by the Hon’ble Supreme Court of Pakistan as under:
“This shows that in the present case the prosecution itself has two versions vis-à-vis the petitioner, first of the complainant party according to which the petitioner was present at the spot and had resorted to firing and second of the investigating agency according to which the petitioner was not present at the spot and he was abetting his co-accused behind the scene. All these considerations surely render the case against the petitioner one of further inquiry into his guilt.”
In this regard, guidance can also be sought from the pronouncement of Hon’ble Supreme Court of Pakistan in case titled “Zaigham Ashraf versus State, etc.” (PLJ 2016 SC 14), wherein the Apex Court has been pleased to observe as under:
“Keeping in view the two conflicting versions; one given by the complainant in the FIR and the other by the Investigating Agency based on documentary evidence with regard to the plea of alibi, the case of the present petitioner has become certainly one of further inquiry, falling within the ambit of sub-section (2) of Section 497, Cr.P.C., where grant of bail becomes the right of accused and it is not a grace or concession, to be given by the Court. In the absence of any exceptional ground or reason, denial of bail in such a case would amount to exercise a discretion in a manner, not warranted by law and principle of justice.”
Similar view was reiterated by the august Supreme Court of Pakistan in the cases reported as Saif Ullah vs. The State and others” (2019 SCMR 1458) and “Babar Hussain vs. The State and another” (2020 SCMR 871).
6. It is further noted that after the recovery of alleged abductee Mst. Madiha has got recorded her statement under Section 161, Cr.P.C. on 08-09-2021 wherein she has not nominated Muhammad Javed, petitioner. Although, the learned counsel for the complainant has argued with vehemence that the alleged abductee Mst. Madiha subsequently got recorded her supplementary statement on 02-10-2021 wherein she has categorically named Muhammad Javed, petitioner. The evidentiary worth of supplementary statement of the alleged abductee would be determined by the learned trial court after recording of evidence. Reliance is placed upon the cases titled as “Syed Muhammad Firdaus and others vs. The State” (2005 SCMR 784) wherein the Hon’able Supreme Court of Pakistan has observed as under:
“… The evidentiary status of supplementary statements of the witnesses would be determined by the trial Court in the light of the law laid down by the Superior Courts but, prima facie, at this stage, their statements indicate that they had not furnished consistent evidence, therefore, prima facie to evaluate the situation, prevailing inside the ladies barrack, without appreciating the same in depth, their versions are required to be examined, particularly of those persons, who remained as hostages inside the barrack ….”
Reference can also be made from the cases titled as “Asfand Yar Khan and another vs. The State and another” (2020 SCMR 715), “Lal Marjan and another vs. Islam Gul and others” (2021 SCMR 301), “Ahmad Ali vs. The State and another” (2021 SCMR 470).
7. Learned Law Officer assisted by learned counsel for the complainant has argued that both the petitioners are vicariously liable for the commission of crime, thus, they are not entitled for the concession of bail. I am not in agreement with this argument because injury attributed to Muhammad Javed, Petitioner No.1 is on non vital part i.e. on the leg of Jahangir (deceased), which is not cause of death. Similarly, no overt act is attributed to Ghulam Haider alias Haider Ali, Petitioner No.2 rather he was only present at the time and place of occurrence, thus, the culpability of the petitioners would be determined by the learned trial court after recording and evaluating the evidence whether they are vicariously liable or not, at this moment, their case squarely falls within the ambit of further inquiry. I fortify my view from the dictum laid down in case laws titled as “Faqir Hussain vs. The State and others” (2014 SCMR 1502) and “Manzoor Hussain and another vs. The State” (2011 SCMR 902).
8. The petitioners are behind the bars since their arrest. The investigation of this case to their extent has been completed. Nothing was recovered from Petitioner No.1. Nobody could be kept in jail for an indefinite period, therefore, further incarceration of the petitioners would not serve any useful purpose. Mere heinousness of offence could not impede release of accused on bail if otherwise his guilt call for further probe, nor bail could be withheld as a strategy for punishment. Reliance is placed upon the cases titled as “Husnain Mustafa vs. The State” (2019 SCMR 1914).
9. The epitome of above discussion is that the petitioners have succeeded in making the case for post arrest bail, hence, this petition is accepted and petitioners are allowed post-arrest bail subject to their furnishing bail bonds in the sum of Rs. 5,00,000/-each with one surety in the like amount each to the satisfaction of learned trial Court.
10. Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial court in any manner.
(A.A.K.) Bail allowed
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