PLJ 2023 Cr.C. 156
Post-arrest Bail--
----Tentative assessment--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. 158] B
2021 SCMR 2011.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(2)--Pakistan Penal Code, (XLV of 1860), S. 302, 148 & 149--Bail after arrest, grant of--Further inquiry--Allegation of--Committed murder--Injury attributed to petitioner is on non-vital part of deceased and also not a cause of death, so, vicarious liability of present petitioner will be determined by learned trial Court after recording and evaluating evidence--It is not denied that both parties have a back ground of land dispute between them--In that backdrop spreading wide net by complainant side to falsely involve petitioner in this case seems to be possibility which cannot safely be ruled out of consideration at this verge--In eventuality of supra mentioned facts, case of petitioner calls for further inquiry into his guilt within purview of Subsection (2) of Section 497, Cr.P.C.--The petitioner is behind bars investigation is complete to his extent
and he is no more required for purpose of further investigation, therefore, petitioner’s captivity would not serve any useful
purpose--Petitioner’s involvement in this case has become doubtful and his case squarely falls within purview of Subsection (2) of Section 497, Cr.P.C. and bail could not be withheld as a strategy of punishment--Moreover, keeping petitioner incarcerated would tantamount to punishing him before conclusion of trial--Bail accepted. [Pp. 158 & 159] A, C & D
1996 SCMR 1125, 2011 SCMR 902, 2012 SCMR 1137,
2019 SCMR 1458 and 2019 SCMR 1914.
Mr. Muhammad Ahsan Bhoon, Advocate for Petitioner.
Mr. Muhammad Moeen Ali, Deputy Prosecutor General for State.
Mian Muhammad Sarwar, Advocate for Complainant.
Date of hearing: 18.1.2022.
PLJ 2023 Cr.C. 156
[Lahore High Court, Lahore]
Present: Muhammad Tariq Nadeem, J.
HASSAN IQBAL--Petitioner
versus
STATE & another--Respondents
Crl. Misc. No. 73828-B of 2021, decided on 18.1.2022.
Order
Through this petition filed under Section 497, Cr.P.C. petitioner Hassan Iqbal craves post arrest bail in case FIR No. 201 dated 15.05.2021, in respect of offences under Sections 302, 148 & 149, PPC registered at Police Station, City Farooqabad, Sheikhupura.
2. I have heard the learned counsel for the petitioner as well as learned DPG for the State assisted by learned counsel for the complainant assiduously and perused the record minutely with their eminent assistance.
3. Facts of the case squeezed from crime report are that petitioner along with his four co-accused nominated in the crime report committed the murders of Naseem Zulf and Waseem Zulf. The petitioner was assigned the role that he made a fire shot on the right arm of deceased Waseem Zulf which went through and through. However, during the investigation, vide case Diary No. 56 dated 22.09.2021 the Investigating Officer has opined that present petitioner has not caused any injury to any deceased, as he was empty handed at the time and place of occurrence. In this way, this case has become of two versions, one put forth by the complainant through FIR and the other by the Investigating Officer. This dichotomy will be determined by the learned trial Court after recording and evaluating the evidence that which version is correct. I fortify my view from the following case laws reported as “Zulfiqar v. The State and another” (2020 SCMR 417) and “Babar Hussain v. The State an another” (2020 SCMR 871) and “Khair Muhammad and another vs. The State through PG Punjab and another” (2021 SCMR 130).
4. It is noteworthy that injury attributed to the petitioner is on non-vital part of deceased and also not a cause of death, so, vicarious liability of present petitioner will be determined by the learned trial Court after recording and evaluating the evidence. Reference can be made to the case laws titled as “Mumtaz Hussain and five others vs. The State” (1996 SCMR 1125) and “Manzoor Hussain and 5 others v. The State” (2011 SCMR 902)
5. 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 …”
6. It is not denied that both the parties have a back ground of land dispute between them. In that backdrop spreading the wide net by the complainant side to falsely involve the petitioner in this case seems to be possibility which cannot safely be ruled out of consideration at this verge. In the eventuality of supra mentioned facts, the case of the petitioner calls for further inquiry into his guilt within the purview of Subsection (2) of Section 497, Cr.P.C. Reliance is placed upon the case laws titled as “Ehsan Ullah vs. The State” (2012 SCMR 1137) & “Saif Ullah v. The State and others” ( 2019 SCMR 1458).
7. Learned Deputy Prosecutor General assisted by the learned counsel for the complainant has vociferously been argued that two persons have been murdered in this case; the offence with which the petitioner has been charged falls within the prohibitory clause of Section 497, Cr.P.C., for the reasons, he is not entitled for concession of bail. I am not in agreement with this contention because it is well settled by now that mere heinousness of offence is no ground for the refusal of bail to an accused who otherwise becomes entitled for the concession of bail. Wisdom is derived from the case law titled as Mst. Sughran Mai versus The State and another (2020 MLD 1944).
8. Learned law Officer, also submitted that the report under Section 173, Cr.P.C has already been submitted and trial is going to be commenced in near future, for this reason, the petitioner is not entitled for the concession of discretionary relief of bail. It is settled proposition of law that mere commencement of trial is no ground for the refusal of bail. I fortify my view from the judgments of Hon’ble Supreme Court titled as “Abid Ali alias Ali v. The State” (2011 SCMR 161), “Muhammad Shafi and others v. The State and others” ( 2016 SCMR 1593) & “Kaleem Ullah v. The State and others” (2017 SCMR 19).
9. The petitioner is behind the bars since 27.07.2021; investigation is complete to his extent and he is no more required for the purpose of further investigation, therefore, petitioner’s captivity would not serve any useful purpose. I am of the view that from the facts and circumstances of the case, petitioner’s involvement in this case has become doubtful and his case squarely falls within the purview of Sub-section (2) of Section 497, Cr.P.C. and bail could not be withheld as a strategy of punishment. Moreover, keeping the petitioner incarcerated would tantamount to punishing him before the conclusion of trial. Reliance is placed upon the case titled as “Husnain Mustafa vs. The State” (2019 SCMR 1914).
10. The epitome of supra mentioned discussion is that, the petitioner has succeeded in making out a case for grant of post arrest bail, therefore, this petition is accepted and petitioner is allowed post-arrest bail subject to his furnishing bail bonds in the sum of Rs. 5,00,000/- (five lac) with two sureties each in the like amount to the satisfaction of learned trial Court.
11. However, it is clarified that the observations made hereinabove are tentative in nature and strictly confined to the disposal of this bail petition.
(A.A.K.) Bail accepted
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