The petitioner seeks post arrest bail in F.I.R. No, 250/04, dated 7.4.2004, under Sections 302, 324, 109 and 34 PPC. The said F.I.R. was registered at P.S. Islampura, Lahore.
2. Briefly, according to the F.I.R., on 5.2.2004, complainant came from Denmark to meet his relatives in Pakistan. On 6.4.2004, he came to stay at Aamer Hotel, Lahore. At about 9.30 pm., he drove into car of his friend, Riaz Suhail to get a Suzuki Pickup, however, when they reached near M.A.O. College, they were overtaken by a Honda car driven by accused Muhammad Azhar and Muhammad Arshad, who were armed with 30-bore pistols. The said accused fired on the complainant from the left side. The complainant received bullets injuries into his abdomen and legs. The motive in the F.I.R. is narrated as property disputed between the parties. Later on, as a result of said injuries, the complainant expired. Names of. Haji Sher Bahadur, Ali Sher and Naurang are also mentioned in the F.I.R. as abettors.
3. The name of the petitioner is not mentioned in the F.I.R. However, it was mentioned in the supplementary statement which was made to the police on 9.4.2007, after three days.
4. During the course of investigation, the petitioner was found innocent, whereupon, Khurshid Bibi filed a private complaint before the learned Sessions Judge, Lahore. In the said complaint, the petitioner alongwith other co-accused was summoned by the trial Court. The petitioner filed an application under Section 265-K Cr.P.C. to seek his acquittal. It is also important to point out that the complainant also filed an application for withdrawal of her complaint. Through a single judgment, the learned trial Court delivered its verdict on 4.12.2006 whereby both applications were accepted, resultantly trial Court acquitted petitioner as well as co-accused Mirza Riaz Suhail.
5. Earlier, on behalf of petitioner a habeas corpus petition (Writ Petition No, 8538/07) was filed, whereby declaration of illegal detention of the petitioner was sought in view of his acquittal in complaint case. However, it was withdrawn to file the instant bail application, with permission of this Court.
6. The main contentions of the learned counsel for the petitioner are that the petitioner was declared innocent during the course of investigation; the petitioner was also acquitted by the competent Court, therefore, he has protection of Section 403, Cr.P.C. In this regard, the learned counsel referred to PLJ 1993 Cr. Cases Lahore 16; PLD 2002 SC 572. The learned counsel also submitted that no role is attributed to the petitioner in the F.I.R. According to him, he was named in the supplementary statement which was given to the police after passage of three years.
7. On the other hand, the complainant side submitted that under the law application for post arrest bail cannot be entertained directly by this Court, it can only be entertained under Section 498 Cr.P.C. He further submitted that third investigation in the instant case was without jurisdiction.
According to him, in the supplementary statement, firing is attributed to the petitioner, therefore, his bail application should be dismissed.
8. The learned Deputy Prosecutor General, Punjab agreed with the learned counsel for the petitioner that the petitioner was found innocent during the course of investigation and he was also acquited in the complaint case.
9. I have heard the learned counsel for the parties and considered their views. In the above circumstances, exact language of the relevant part of acquittal order is important which is reproduced as under: "The role of the accused persons, Mirza Riaz Sohail and Fazal Hussain is at par and the same with that of Ali Sher. At this stage of the trial, there is no iota of evidence connecting the accused persons with the commission of offence is available on record while on the other hand the complainant herself does not want to prosecute the accused and in the facts and circumstances of the case, there is left no opinion but to accept the petition under Section 265-K, Cr.P.C. moved by the accused persons Mirza Riaz Sohail and Fazal Hussain and the petition filed on behalf of the complainant for withdrawal of the complaint. Accepting both the petitions, the complaint is hereby dismissed as withdrawn. As a result of dismissal of the complainant, the accused persons are acquitted of the charge against them in this case."
The words "acquittal" is very important. The said order was passed or in other words petitioner was acquitted on 4.122006, the same has never been challenged before any forum, therefore, the order dated 4.12.2006 has its legal effects. As noted above, the petitioner was also found innocent during the course of investigation. The opinion of the police is not binding but it has to be taken into account, particularly, when evidence in the Court is not recorded and not available for forming an opinion. The objection of the learned counsel for the complainant side that concurrent jurisdiction is only available to the High Court in pre-arrest bail under Section 498 Cr.P.C. is devoid of any force.
Neither Section 498 nor 497, Cr.P.C. expressly confer concurrent jurisdiction on A the Courts, it has been derived from the practice only and, therefore, exercised with caution under certain circumstances only. Section 497 Cr.P.C. does not expressly provide that application cannot be entertained by High Court directly in post-arrest cases. As noted above, instant bail application was substituted with the habeas corpus petition. Writ Petition No, 8537/07 is also pending wherein, in view of the acquittal order of the learned Addl. Sessions Judge, dated 4.12.2006, the quashment of the F.I.R. is sought. In view of the above facts and circumstances, I do not see any bar in entertaining the instant bail application. Supplementary statement has no legal value than statement under Section 161 Cr.P.C. in the instant case it was recorded after three years. Therefore, it has to be seen with care and Suspicion.
10.The learned counsel for the complainant referred to several judgments on Section 403 Cr.P.C.
Instead of discussing all, I may, mention two of them. In PLJ 1993 Cr. Cases Lahore 16, earlier complaint in respect of the same occurrence and under the same offence had been filed and withdrawn by Respondent No, 2 on the ground that the parties had effected a compromise. In the instant case application Under Section 265-K, Cr.P.C. was allowed and the petitioner was duly pronounced as acquitted. Therefore, facts and circumstances in both the cases are different. In PLD 2004 Lahore 591, the petitioner (accused) was complainant and he was never tried. Thus, in the said case there was no question of double jeopardy. Furthermore, the judgment was set aside in appeal. Similarly, I have examined other cases also i,e, NLR 2003 Criminal 604, 1976 P.Cr. LJ Lah. 936, PLD 1961 AJK 12 and PLD 1960 AJK 24. The facts of all these cases are distinguishable from the facts of the present case.
11.In view of the above circumstances and reasons given in para 9, this bail application is allowed subject to petitioner's furnishing surety bonds in the sum of Rs, 1,00,000/-with one surety in the like amount to the satisfaction of the Deputy Registrar (J) of this Court.