PLJ 2023 Cr.C. 170
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(2)--Pakistan Penal Code, (XLV of 1860), Ss. 324, 148, 149, 109, 302 & 337-F(i)--Bail after arrest, grant of--Further inquiry--Allegation of--Incident of homicide--Petitioner’s plea of alibi supported by affidavit of a disinterested person, a medical practitioner of high repute, not having any ostensible connection with petitioner, such type of evidence in favour of accused while dealing with bail petitions cannot be ignored and can be validly taken into consideration in favour of petitioner--In instant case, as both witnesses, who deposed before investigating agency i.e. Manager of Taj Hotel and Manager of MCB were non-partisan witnesses, so, this material in favour of petitioner cannot be brushed aside simpliciter--Opinion expressed by investigating agency is neither binding on Court nor could be taken as gospel truth but it depends on circumstances of each case to be considered--Court could not get rid of or brush aside such opinion unless some other cogent reasons or extenuating circumstances are available to discard and dislodge such opinion to come to another judicious and sagacious conclusion--The Superior Courts of this country had held on many occasions that to curtail liberty of a person is a serious step in law, therefore, Judges shall apply judicial mind with deep thought for reaching at a fair and proper conclusion albeit tentatively however, this exercise shall not be carried out in vacuum or in a flimsy and casual manner as that will defeat ends of justice because if accused charged, is ultimately acquitted at trial then no reparation or compensation can be awarded to him for long incarceration--Extraordinary care and caution shall be exercised by Judges in course of granting or refusing to grant bail to accused person, charged for offence(s), punishable with capital punishment--There is no cavil with proposition that Courts are required to make tentative assessment with pure judicial approach of all materials available on record, whether it goes in favour of prosecution or in favour of defence before making a decision--It is apprised to Court that investigation of case had already been finalized and physical custody of accused persons is no longer required for such purpose, so, guilt of both petitioners, call further inquiry, within meaning of Section 497(2) of the, Cr.P.C. [Pp. 172, 173 & 174] A, B, C & E
PLD 1978 SC 256 & 2021 SCMR 2011.
Bail--
----Purpose of--It is cardinal principle of law that for purpose of bail, law not to be stretched in favour of prosecution, benefit of doubt, if any arising, must go to accused, even at bail stage. [P. 174] D
PLD 1972 SC 277 & 1972 SC 81.
M/s. Fiaz Ahmad Ranjha and Muhammad Farhan Saeed, Advocates for Petitioner (in Crl. Misc. No. 2293/B/2022).
Mr. Muhammad Abid Hussain Saqi, Advocate for Petitioner (in Crl. Misc. No. 26656/B/2022).
Ms. Noshi Malik, DPG. for State.
Khawaja Isaam Bin Haris, Advocate for Complainan (in Crl. Misc. No. 2293/B/2022).
Barrister Danyal Ijaz Chadhar, Advocate for Complainant (in Crl. Misc. No. 26656/B/2022).
Date of hearing: 16.9.2022.
PLJ 2023 Cr.C. 170
[Lahore High Court, Lahore]
Present: Muhammad Waheed Khan, J.
MUHAMMAD ASLAM--Petitioner
versus
STATE, etc.--Respondents
Crl. Misc. No. 2293/B of 2022, decided on 16.9.2022.
Order
This single order shall dispose of this petition as well as Crl. Misc. No. 26656/B/2022, as both are stem of the same FIR.
2. Through the instant petitions, petitioner Muhammad Aslam and Faheem, seek post-arrest bail in case FIR No. 620/2021 dated 21.09.2021 registered u/Ss. 324, 148, 149, 109, PPC later on added Sections 302, 337-F(i), PPC at P.S. Kot Momin, Sargodha.
3. The incident of homicide of one Faiz Ahmad and injury on the person of another Manazir Ali, was reported to the police by Zahid Abbas son of the deceased with P.S. Kot Momin, Sargodha, wherein apart from the present petitioners, three others were nominated as accused, hence, the instant FIR.
4. Pro & contra arguments heard. Record perused.
5. First, I take up the case of Muhammad Aslam petitioner. He is named in the FIR with the role that he fired a Kalashnikov burst at Faiz Ahmad deceased, which hit him at his left hand and right elbow. On going through his medico-legal certificate (MLR) and the post-mortem report, it is noted that a 3x1 cm grazed wound at right elbow and lacerated wound 7x4 cm on medial side of left hand are available at the person of deceased and prima facie the medical evidence supports the version of the complainant, qua the role attributed to Muhammad Aslam petitioner. However, the record reflects that apart from Muhammad Aslam, two other co-accused persons, Muhammad Akram and Muhammad Mazhar have also been attributed the role of making firing at the person of the deceased. During the course of investigation, the investigating agency had concluded that Muhammad Aslam was not available at the crime scene rather he was held guilty of abetment, as he had provided the support to main accused persons behind the scene. The police record further reflects that in fact the petitioner had taken the plea of alibi during the investigation, while stating therein that on the day of incident, he was available at Murree, this plea of alibi was thoroughly investigated by the investigating agency and also associated the Manager of Taj Hotel, Murree and the Manager of MCB, Murree, who admitted that the petitioner was in Murree on 21.09.2021. The Manager of MCB confirmed that on 21.09.2021, the petitioner had withdrawn an amount of Rs. 50,000/-from the concerned branch by appearing himself in the said branch. Learned counsel appearing on behalf of the complainant vigorously argued that plea of alibi of the accused cannot be taken into consideration at bail stage and it would be up to the learned Trial Court, which will decide the fate of the same on the strength of evidence to be recorded before it. I believe that this assertion by the learned counsel for the complainant is not correct, as the Superior Courts of this country had held in a number of cases that any plea taken by the petitioner during the investigation can be validly considered even at bail stage. The august Supreme Court of Pakistan in case of “Zaigham Ashraf v. The State and others” (2016 SCMR 18) had highlighted this principle in the following terms:
“6. There is no hard and fast rule that plea of alibi shall not be considered at bail stage because while granting or refusing to grant bail to an accused person, the Court is not required to see and consider the materials/evidence, collected in favour of the Prosecution but also to give proper attention to the defence plea, taken by an accused person. (emphasis supplied).
In another land mark judgment rendered by the august Supreme Court of Pakistan in case of “Khalid Javed Gillan v. The State” (PLD 1978 S.C. 256), it has been held that the petitioner’s plea of alibi supported by affidavit of a disinterested person, a medical practitioner of high repute, not having any ostensible connection with petitioner, such type of evidence in favour of accused while dealing with the bail petitions cannot be ignored and can be validly taken into consideration in favour of the petitioner. In the instant case, as both the witnesses, who deposed before the investigating agency i.e. Manager of Taj Hotel and Manager of MCB were the non-partisan witnesses, so, this material in favour of the petitioner cannot be brushed aside simpliciter. In a recent pronouncement rendered by the august Supreme Court of Pakistan in case of “Resham Khan and another v. The State through Prosecutor General Punjab, Lahore and another” (2021 SCMR 2011), it is observed that opinion expressed by the investigating agency is neither binding on Court nor could be taken as gospel truth but it depends on circumstances of each case to be considered. The Court could not get rid of or brush aside such opinion unless some other cogent reasons or extenuating circumstances are available to discard and dislodge such opinion to come to another judicious and sagacious conclusion. Even otherwise, as observed earlier, apart from the present petitioner, two other co-accused persons Muhammad Akram and Muhammad Mazhar had been attributed the role of making firing at the person of the deceased. So, all these factors taken together, lead to the conclusion that the case of the present petitioner has become certainly one of further inquiry.
6. Coming to the case of Faheem petitioner, although, he is nominated in the FIR but the role attributed to him is that he fired a Kalashnikov burst, which hit at left bicep of Manazir Ali PW. On going through the medico-legal certificate (MLC) of the injured PW Manazir Ali, it is noted that doctor while observing injury at his left arm, opined as under:-
“Injury No. 1. 1x1cm lacerated grazing wound on left arm, lateral side, 13cm below left shoulder, which is skin deep. There is reddish seen on wound”.
So, this opinion of the doctor regarding injury sustained by Manazir Ali PW clearly contradicts the stance taken by the complainant, while lodging the FIR, qua the role, allegedly played by Faheem petitioner. Had Faheem inflicted a burst of Kalashnikov at the person of the injured PW, then the Kalashnikov being a very formidable weapon, much damage should have been caused at the person of Manazir Ali injured. The learned law officer apprised that a Kalashnikov has been recovered from the possession of this petitioner during the course of investigation. It is suffice to observe that the evidentiary value of the same shall be adjudged by the learned Trial Court during the course of trial. The Superior Courts of this country had held on many occasions that to curtail the liberty of a person is a serious step in law, therefore, the Judges shall apply judicial mind with deep thought for reaching at a fair and proper conclusion albeit tentatively however, this exercise
shall not be carried out in vacuum or in a flimsy and casual manner as that will defeat the ends of justice because if the accused charged, is ultimately acquitted at the trial then no reparation or compensation can be awarded to him for the long incarceration. Therefore, extraordinary care and caution shall be exercised by the Judges in the course of granting or refusing to grant bail to accused person, charged for offence(s), punishable with capital punishment. However, there is no cavil with the proposition that Courts are required to make tentative assessment with pure judicial approach of all the materials available on record, whether it goes in favour of the prosecution or in favour of the defence before making a decision. Even otherwise, it is cardinal principle of law that for the purpose of bail, law not to be stretched in favour of the prosecution, benefit of doubt, if any arising, must go to accused, even at bail stage. Reliance is placed on the dictum laid down by the august Supreme Court of Pakistan in cases of “Amir v. The State” (PLD 1972 Supreme Court 277 & “Manzoor And 4 Others v. The State” (1972 Supreme Court 81). It is apprised to the Court that the investigation of the case had already been finalized and physical custody of the accused persons is no longer required for such purpose, so, guilt of both the petitioners, call further inquiry, within the meaning of Section 497(2) of the, Cr.P.C.
7. For the supra discussion, I reach to the conclusion that the case of post-arrest bail of both the petitioners stands made out, hence, both these petitions are allowed and the petitioners are admitted to post-arrest bail, subject to their furnishing bail bonds in the sum of
Rs. 2,00,000/-(Rupees two lacs) each 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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