PLJ 2026 Cr.C. (Note) 17
[Lahore High Court, Lahore]
Present: Muhammad Tariq Nadeem, J.
MUHAMMAD AMIN--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 15073-B of 2024, decided on 27.3.2024.
Criminal Procedure Code, 1898 (V of 1898)--
ایس ۔ 497-پاکستان پینل کوڈ ، 1860 (1860 کا ایکس ایل وی) ایس ۔ 302 ، 324 ، 148 اور 149-گرفتاری کے بعد ضمانت-قتل-لیکن نیچے-زمینی تنازعہ - - قاتلانہ حملہ - - کوئی آتشیں اسلحہ منسوب نہیں - - طبی رائے - - چوٹ موت کی وجہ نہیں - - دو متضاد ورژن - متفرق ذمہ داری-ٹرائل کورٹ کے ذریعے طے کی جائے گی-شک کی کمی - - مزید تفتیش - - ضمانت سزا نہیں - گرفتاری کے بعد ضمانت میں کوئی شک نہیں ، صرف عارضی تشخیص کی جانی تھی اور اس مرحلے پر شواہد کی گہری تعریف یا تشخیص نہ تو مطلوب تھی اور نہ ہی جائز تھی لیکن ملزم کو ضمانت کے مرحلے پر بھی شک کا فائدہ دیا جا سکتا تھا اگر کیس کے حقائق اس کی ضمانت دیتے ہیں ۔ - حقائق اور کیس کے حالات سے ، اس معاملے میں درخواست گزار کی شمولیت مشکوک ہو گئی تھی اور اس کا مقدمہ واضح طور پر سیکشن 497 ضابطہ فوجداری کے ذیلی سیکشن (2) کے دائرہ کار میں آتا ہے اور ضمانت کو سزا کی حکمت عملی کے طور پر نہیں روکا جاسکتا ہے ۔ - اس کے علاوہ ، درخواست گزار کو قید میں رکھنا مقدمے کی سماعت کے اختتام سے پہلے اسے سزا دینے کے مترادف ہوگا - - مذکورہ بحث کا خلاصہ یہ ہے کہ درخواست گزار گرفتاری کے بعد ضمانت کی منظوری کے لیے مقدمہ بنانے میں کامیاب ہو گیا تھا-درخواست قبول کر لی گئی ۔
----S. 497--Pakistan Penal Code, 1860 (XLV of 1860), Ss. 302, 324, 148 & 149--Post-arrest bail--Murder--But below--land dispute--Alleged murderous assault--No fire-arm attributed--medical opinion--Injury not cause of death--Two contradictory version--Vicarious liability--Will be determined by trial Court--Benefit of doubt--Further inquiry--Bail not punishment--No doubt in a post-arrest bail, only tentative assessment was to be made and deeper appreciation or evaluation of evidence at this stage was neither desirable nor permissible but benefit of doubt could be extended to accused even at bail stage if facts of case so warrant--From facts and circumstances of case, petitioner’s involvement in this case had become doubtful and his case squarely falls within purview of sub-section (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--The epitome of above discussion is that petitioner had succeeded in making out a case for grant of post-arrest bail--Petition accepted.
[Para 6, 8 & 9] A, B & C
Mian Amir Abbas, Advocate for Petitioner.
Mr. M. Moin Ali, DPG for State.
Hafiz Roohul Amin, Advocate for Complainant.
Date of hearing: 27.3.2024.
Order
Through this petition filed under Section 497, Cr.P.C. the petitioner craves post-arrest bail in case FIR No. 1215 dated 25.10.2023, in respect of offences under Sections 302, 324, 148, 149, PPC, registered at Police Station Kanganpur, District Kasur.
2. Facts of the case squeezed from the crime report are that the petitioner along with his co-accused while equipped with their respective weapons launched an attack in order to forcibly occupy 3-Marlas Shamlat Land in possession of Muhammad Ashiq (deceased). During the occurrence the petitioner and his co-accused made a murderous assault upon Muhammad Ashiq who breathed his last at hospital. Hence, the crime report.
3. I have heard the learned counsel for the petitioner as well as learned Law Officer assisted by learned counsel for the complainant assiduously and perused the record minutely with their eminent assistance.
4. After going through the narration of FIR as well as evidentiary material collected by police and presented before this Court, it divulges that petitioner is nominated in FIR with the allegation that he made butt blow of pistol which landed on the right eye of Muhammad Ashiq (deceased). The said injury is re-produced hereunder:
Injury No. 2: Bruise on eye ® Size: 6 cm x 5 cm black in colour mild swelling present.
Although the said injury is reflected in the post-mortem report of the deceased but according to final opinion of the medical officer this injury is not the cause of death. Additionally, during the course of investigation vide case diary No. 23 dated 29.11.2023 the Investigating Officer has opined that present petitioner was not equipped with any firearm weapon at the time and place of occurrence rather he was empty handed. In this way, this case has become of two versions, one put forth by the complainant in the shape of FIR and the other in the light of opinion rendered 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-law titled as Babar Hussain v. The State and another” (2020 SCMR 871).
5. Keeping in view the role attributed to the petitioner in crime report as well as a totally contrasting opinion given by the investigating officer as noted above, the questions of vicarious liability of the petitioner will be determined by the trial Court after recording and evaluating the evidence. Reference can be made to the case titled as “Mumtaz Hussain and 5 others v. The State” (1996 SCMR 1125), “Manzoor Hussain and another v. The State” (2011 SCMR 902) and “Muhammad Ameen v. The State and another” (2022 SCMR 1444).
6. 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 on the case titled as “Resham Khan and another v. The State through Prosecutor General Punjab, Lahore and another” (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 …”
7. Learned Law Officer assisted by learned counsel for the complainant vociferously argued that the offence with which the petitioner has been charged falls within the prohibitory clause of section 497 Cr.P.C. and that is a heinous offence, for the reason, 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 “Husnain Mustafa v. The State and another (2019 SCMR 1914).
8. The petitioner is behind the bars since his arrest. There is no prospect of early decision of the case. The investigation to his extent is complete and he is no more required for the purpose of further investigation, therefore, his 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 c ion of trial.
9. The epitome of above 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 allowed post-arrest bail subject to his furnishing bail bonds in the sum of Rs.5,00,000/- (five lacs) with two sureties each in the like amount to the satisfaction of learned trial Court.
10. However, it is clarified that the observations made hereinabove are tentative in nature and strictly confined to the disposal of this bail petition.
(J.K.) Petition disposed of
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