PLJ 2022 Cr.C. 1595
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(1)--Pakistan Penal Code, (XLV of 1860), Ss. 302, 148 & 149--Post-arrest bail, grant of--Allegation of--Previous enmity and family honour--Fire shots by Kalashnikov--Both accused persons, including present petitioner were arrayed in column No. II of said report, complainant has not preferred any private complaint--So, this attitude of complainant, firstly by not challenging opinion of Investigating Officer and then by not filing a private complaint, showed that in fact complainant is satisfied with outcome of investigation--It was held “that even for purpose of bail, law is not to be stretched in favour of prosecution--If any benefit of doubt arises, it must go to accused”--Allegation of a crime levelled against petitioner falls within prohibition contained in Section 497(1) of Cr.P.C. but apex Court in its celebrated judgment--Bail allowed.
[Pp. 1597 & 1598] A, B & C
2021 SCMR 1914, 2016 SCMR 18, PLD 1978 SC 256, PLD 1972 SC 277, PLD 1972 SC 81 & PLD 1995 SC 34.
Qazi Sadar-ud-Din Alvi, Advocate for Petitioner.
Malik Mudassir Ali, DPG. for State.
Mr. Atta-ul-Manan Malik, Advocate for Complainant.
Date of hearing: 26.1.2022.
PLJ 2022 Cr.C. 1595
[Lahore High Court, Multan Bench]
Present: Muhammad Waheed Khan, J.
MUHAMMAD IJAZ--Petitioner
versus
STATE etc.--Respondents
Crl. Misc. No. 8802-B of 2021, decided on 26.1.2022.
Order
Through the instant petition, petitioner Muhammad Ijaz seeks post-arrest bail in case FIR No. 213/2021 dated 30.09.2021 registered u/S. 302, 148, 149, PPC at P.S. Kot Mubarak, D.G. Khan.
2. Precisely, the case of the prosecution, as set forth in the first information report (FIR) was that on 30.09.2021 at 05:15 p.m., husband of the complainant, namely, Allah Bakhsh was going towards the shop of one Yaqoob Lashari, after offering his Asar prayer, in Mauza Bahadar Garh, situated within the territorial limits of above said Police Station, he was intercepted by the accused persons, Muhammad Ijaz petitioner and his co-accused Ghulam Rasool fired number of Kalashnikov shots on the person of Allah Bakhsh, who succumbed to the injuries at the spot. The deceased was statedly done to death on account of previous enmity and family honour, hence, the instant case.
3. Pro & contra arguments heard. Record perused.
4. As the investigation progressed, the petitioner was arrested by the police on 04.11.2021 and during his physical remand, nothing incriminating was recovered from his possession. The investigating agency after a through probe had concluded that the petitioner is not connected with the offence, he was declared innocent and in consequence of that, a discharge report was prepared and sent to the learned Area Magistrate but the same was not agreed by the said forum vide order dated 19.11.2021. The learned law officer, on going through record and on the information imparted by the Investigating Officer, present in Court, apprised that in fact the petitioner has been declared not to be involved in this case by the investigating agency, as during the course of investigation, his plea of alibi has been found true. His plea was that at the time of occurrence, he was available in a wedding ceremony, being solemnized in another village. The Investigating Officer visited that place and got associated number of persons in investigation, who claimed that the petitioner was with them at the marriage ceremony. The learned law officer apprised that the statement of 6/7 persons have been recorded by the police in the case diaries verifying ‘plea of alibi’ of petitioner. When confronted, learned counsel appearing on behalf of the complainant candidly admitted that the complainant has not challenged the opinion of the police before any higher forum of the police hierarchy. The Investigating Officer also apprised that he had seen the video film of the wedding ceremony and noticed that at the relevant time, the petitioner was present therein. Learned counsel for the complainant admitted that despite the fact that report u/S. 173 Cr.P.C. has been sent to the learned Trial Court by the prosecution on 06.12.2021, wherein both the accused persons, including the present petitioner were arrayed in column No. II of the said report, the complainant has not preferred any private complaint. So, this attitude of the complainant, firstly by not challenging the opinion of the Investigating Officer and then by not filing a private complaint, showed that in fact the complainant is satisfied with the outcome of the investigation. Learned counsel for the petitioner while referring the case of “Muhammad Ramzan v. The State and others (2021 SCMR 1914), stated that the opinion of the Investigating Officer (I.O.) was relied upon by the august Supreme Court of Pakistan, as the same was formed after recording statements of independent witnesses during the course of investigation. The top Court in the (supra) judgment held as under:
“5. In view of the statement of the investigation officer supported by the statement of the witnesses discussed above, we are of the view that there are sufficient grounds for further inquiry into the guilt of the petitioner. The petitioner (Muhammad Ramzan) is, therefore, admitted to post-arrest bail, subject to furnishing bail bond in the sum of Rs.100,000/-with one surety in the like amount to the satisfaction of the Trial Court. This petition is converted into appeal and allowed accordingly.”
5. As far as reliance on the alibi at the bail stage is concerned, the top Court in case of “Zaigham Ashraf v. The State and others (2016 SCMR 18) has observed 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 discretion in a manner, not warranted by law and principle of justice”.
Similar principle was held by the apex Court in case of “Khalid Javed Gillan v. The State (PLD 1978 S.C. 256). In case of “Amir v. The State” (PLD 1972 Supreme Court 277), it was held “that even for purpose of bail, law is not to be stretched in favour of the prosecution. If any benefit of doubt arises, it must go to the accused”. Similar view was reiterated in the case of “Manzoor and 4 others v. The State (PLD 1972 Supreme Court 81).
6. I am mindful of the fact that the allegation of a crime levelled against the petitioner falls within the prohibition contained in Section 497(1) of Cr.P.C. but the apex Court in its celebrated judgment, rendered in case of “Tariq Bashir and 5 others v. The State” (PLD 1995 Supreme Court 34) held “As regards the first category of offences (punishable with death, or imprisonment for life, or with ten years’ imprisonment) the provisions of section 497(1) are not punitive in nature. There is no concept of punishment before judgment in the criminal law of the land. The question of grant/refusal of bail is to be determined judiciously having regard to the facts and circumstances of each case”.
7. For the reasons discussed supra, I reach to the conclusion that the petitioner is eligible to be enlarged on bail. Resultantly, the instant petition succeeds and the petitioner is allowed post-arrest bail, subject to his furnishing surety bonds in the sum of Rs.5,00,000/-(Rupees five lacs) with two sureties each in the like amount to the satisfaction of the learned trial Court.
(A.A.K.) Bail allowed
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