Muhammad Imran vs The State and another

ORDER

Through the instant petition under section 497 Cr.P.C, the petitioner is seeking post-arrest bail in case FIR No.31/2023 dated 03.02.2023, registered for the offences under sections 302, 324, 337-F(iii), 337-F(i), 34 PPC with the Police Station Kala, District Dera Ghazi Khan.

2. The allegation against the petitioner as per FIR is that in the intervening night of 02/03.02.2023, he alongwith his co-accused launched murderous assault upon the nephews of complainant resulting into injuries to Sana Ullah and Asad Ullah. Subsequently, Asad Ullah succumbed to injuries.

3. Arguments heard. Record perused.

4. It is noted with grave concern that although, in First Information Report, the complainant asserts that he alongwith his nephew Munawar Hussain were present at the spot when the petitioner Muhammad Imran, opened two fire shots from his Kalashankov and both of said shots landed on the head of deceased Asad Ullah. However, during the course of investigation, the first investigating officer opined that petitioner was not present at the spot and found him innocent. The Investigating Officer prepared discharge report qua the petitioner, however, the same was disagreed upon by the learned Area Magistrate, whereafter, report under section 173 of Cr.P.C was prepared by placing name of petitioner in column No.II of report. It is worth mentioning here that on the application of complainant, the case was reinvestigated by the District Investigation Board (DIB), however, its member also seconded the opinion of first investigating Officer. The opinion of second Investigating Officer was also duly approved by the Superintendent of Police Dera Ghazi Khan.

There is nothing on record which could suggest the challenging of opinion of second investigation or filing of any private complaint being dissatisfied of police investigation by the complainant.

4.A. In view of above divergent aspects of instant case, now, this Court has to tentatively evaluate as to how much weight can be given to police opinion at this stage of bail while keeping the available material in juxtaposition with the quantum of accusations leveled against the petitioner.

4.B. Considering the facts upon which the police based its opinion, the record in this respect reveals that the police took into possession two Peter Engines and one broken frame of motorcycle cot ), (case properties of case F.I.Rs No.33/23, under section 379 P.P.C. and 34/2023 under section 379 P.P.C.) which were subsequently identified by their respective owners. Precisely, as per findings of Police, the deceased, injured and some unknown persons committed theft of above said Peter Engines and were carrying them on the motorcycle cot/) but on the way its right side frame was broken, which attracted the attention of people of vicinity. Thereafter, there occurred episode of cross-firing between the deceased, injured and other unknown persons and in this hustle of cross- firing, being sandwich Sana Ullah and Asad Ullah sustained injuries.

4-C. When, the record is attended to, criminal antecedents of complainant, deceased Asad Ullah and others are found on the surface of it. Whereas, on the other hand, during the course of investigation as many as 30 persons presented their duly sworn affidavits whereby they not only corroborated the factum of commission of theft of Peter Engins, etc., by the deceased party in the intervening night of the occurrence but also asserted innocence of petitioner. During the course of arguments, learned counsel for the complainant could not controvert above noted facts rather he himself produced the record of Rescue-15, which is also available with the record. The perusal of said record also prima facie supports the Police opinion in respect of information of commission of theft and cross-firing. The above noted peculiar circumstances and facts constrained this Court to hold that instant case is of distinct features and characteristics wherein the police findings prima facie finds support from the material available on record. On the other hand, there is nothing on record which could prove the mala-fide of police.

5. In sequel to above, it is worth mentioning here that the definition of an accused person has been provided in a salutary judgment reported as "Brig.(Retd.) F. B. Ali and another Vs. The State".^[1] The same is reproduced as under:- "In my view the mere lodging of an information does not make a person an accused nor does a person against whom an investigation is being conducted by the police can strictly be called an accused. Such person may or may not be sent up for trial. The information may be found to be false. An accused is, therefore, a person charged in a trial. The Oxford English Dictionary defines an "accused" as a person "charged with a crime" and an "accusation" as an "indictment'. Aiyer in his Manual on Law Terms also gives the same meaning. I am of the view, therefore, that a person becomes an accused only when charged with an offence."

[Emphasis added] Perusal of the above definition clearly reflects that any person against whom an accusation is made cannot be dubbed as an accused unless and until he is found involved by the Investigating Officer and in this regard a specific order for his arrest is made by him. All these ingredients are missing, therefore, as far as the status of the petitioner is concerned, he cannot be termed as an accused person. Reliance in this regard is also placed on case law titled "Chaudhry Nadeem Sultan v. The State through P.G Punjab and another". ^[2]

6. Moreover, although the opinion of the police is not binding upon the Courts, but being adverse to the prosecution, it creates doubt about the veracity of the prosecution case against the petitioner.

The opinion of investigating officer as to the innocence or guilt of the accused depends on the soundness of the material on which it is based.^[3] The same has the persuasive value, if based upon cogent and concrete material.^[4] As discussed above, the findings of police are based on cogent and sound material, therefore, sufficiently pulls the case of the petitioner in the ambit of further inquiry for the purpose of bail.

7. Furthermore, it is also noted that in existence of police findings, the case to the extent of petitioner has also becomes two versions i.e. one set out by the complainant according to which he was present at the spot and had resorted to firing and second of investigating agency according to which he was not present at the spot and found innocent. This fact, in addition to above, also casts doubt in respect of the indictment of the petitioner, which can only be evaluated by the learned trial court after recourse to evidence. It is settled principle of law that benefit of doubt can be even extended at bail stage. Reliance is placed on case laws "Muhammad Ejaz Vs. The State", "Muhammad Arshad Vs. The State" and "Fahad Hussain Vs. The State".^[5]

8. Nothing was recovered from the petitioner. He was arrested in this case on 13.04.2023 and his physical custody is no more required to the police for further investigation. There is no substantial progress in the conclusion of the trial and, thus, his further incarceration for an indefinite period would serve no useful purpose for the prosecution. Mere heinousness of offence could not impede the release of accused on bail if otherwise his guilt call for further probe, nor bail could be withheld as a strategy for punishment. Reliance can be placed on case laws "Imtiaz Ahmed vs. The State", "Syed Khalid Hussain Shah vs The State and another" and "Husnain Mustafa vs. The State".^[6]

9. Keeping in view the above noted peculiar facts and circumstances of instant case and without discussing the other merits of the case lest it should prejudice the case of either side, this petition is hereby accepted and the petitioner is admitted to post arrest bail subject to furnishing his bail bonds in the sum of Rs.2,00,000/- with one surety in the like amount to the satisfaction of the learned trial Court. It is, however, clarified that the observations made hereinabove are tentative in nature, and strictly confined to the disposal of instant bail petition.