2017 PLP 405 (YLRN)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

By means of instant petition, the petitioner has sought for his post arrest bail in case FIR No.348, dated 18.06.2016, offence under sections 324, 148, 149, P.P.C., subsequently offence under sections 302, 337-F(iii), P.P.C., added, registered with Police Station, Saddar Sargodha.

2. Allegation against the petitioner, in brief, as per contents of the crime report is that on 18.06.2016 at 7:00 p.m. he along with his co-accused while armed with their respective weapons launched murderous assault upon the complainant party. The petitioner has been ascribed the role of causing one fire shot landing at the abdomen of Ehtasham Ali (deceased), two fire shots hitting at the left buttock and right thigh of the complainant and one fire shot landing at the right arm of Farzand Ali, father of the complainant.

3. Learned counsel for the petitioner submits that the petitioner has falsely been implicated in the instant case by the complainant against the actual facts and circumstances with ulterior motives. It is argued that though the petitioner has been ascribed specific role in the crime report, but the same is against the facts. Adds that no recovery has been affected from the petitioner by the Investigating Officer during the course of investigation, rather he has been found innocent in this case having absolutely no nexus with the crime alleged and as such his name has been placed in column No.2 of the report under section 173, Cr.P.C. It is submitted that even discharge report was prepared in this case, but the same has not been agreed by the learned Illaqa Magistrate vide order dated 17.11.2016. In such circumstances, it is argued that the case against the petitioner becomes one of further inquiry falling within the ambit of section 497(2), Cr.P.C. While placing his reliance upon the dictums of law laid down by the august Supreme Court of Pakistan in the cases of "Nasar v. The State" (2017 SCMR 130), "Zaigham Ashraf v. The State and others" (2016 SCMR 18) and order dated 13.01.2017 passed in Crl. Petition No. 1135-L of 2016 in case titled "Muhammad Akram v. The State, etc." learned counsel submits that the petitioner is entitled to the relief prayed for.

4. As against above learned Deputy Prosecutor General assisted by learned counsel for the complainant has opposed this petition with vehemence. It is argued that the petitioner is named in the crime report with specific allegation of causing firearm injuries to the deceased as well as to two prosecution witnesses. However, learned Law Officer frankly concedes that the petitioner has been found innocent by the Investigating Officer during the course of investigation and his name has been placed in column No.2 of the report under section 173, Cr.P.C.

5. Arguments advanced pro and contra have been heard. I have also gone through the record available on file.

6. There is no denial to this fact that the petitioner is named in the FIR, however this Court has to see from the facts and circumstances whether case against the petitioner to the extent of grant of relief prayed for is made out or not. Though the petitioner has been ascribed specific role in the crime report, but it is worth mentioning here that despite remaining on physical remand with the police for a considerable time, no recovery could be affected from the petitioner by the Investigating Officer, rather he was found innocent by the Investigation Officer and his name was placed in column No.2 of the report under section 173, Cr.P.C. Even discharge report was prepared by the Investigating Officer in this case though the same was disagreed by the learned Illaqa Magistrate vide order dated 17.11.2016.

7. So far as the legislation qua criminal law is concerned, the definition of accused person has not been mentioned anywhere. Perhaps it was not intentionally defined leaving room for the Investigating Officer to properly ascertain involvement of any person against whom accusation of commission of an offence has been alleged. However, this aspect was taken care of by the august Supreme Court of Pakistan for the first time while handing down salutary judgment in the case of Brig. (Retd.) F.B. Ali and another v. The State (PLD 1975 Supreme Court 506), wherein at page No.513 accused person has been defined as follows:-- "

Mere lodging of information. against a person does not make him an accused nor can a person be called accused against whom investigation is conducted by police". The same was reiterated in the case of "Ghulam Rasool Mir v. Azad Government of the State of Jammu and Kashmir and others" (1983 PCr.LJ 298) [Azad J&K]. It would be advantageous to go through the same, which reads as follows:- "

S. 154--First information report

Mere levelling of accusation against a person in FIR held, does not make such person an accused person within meaning of Criminal Procedure Code, 1898 untill and unless some evidence implicating such person in commission of offence available". Bare reading of the aforesaid judgments reflects that even a person involved in a criminal case through nomination cannot be dubbed as an accused until and unless the material collected by the Investigating Officer is sufficient to show his arrest and take him into custody. This practice is clearly in consonance of the aforesaid interpretation as it is always seen that Investigating Officer would incorporate the same findings prior to taking any action qua arrest. Then the word accused person can be a correct nomenclature as per law. This aspect in fact co-relates with the sanctity of liberty of a person. In the case in hand I have observed that though the petitioner is named in the crime report, but during the course of investigation, the accusations levelled against him were not substantiated by any material, hence until and unless any findings of the learned trial court comes, the petitioner cannot be equated within the nomenclature of being an accused person. In a similar situation, while dealing with Crl. Petition No.1135-L/2016 in terms of order dated 13.01.2017, the august Supreme Court of Pakistan has observed as under:-- "

2. After hearing the learned counsel for the petitioner, learned counsel for the complainant, learned Law Officer and perusal of available record, it has been noted by us that precise allegation against the petitioner in the FIR is that he along with his co-accused (who were armed with multiple weapons) while armed with a pistol 30 bore fired at Jehangir (deceased) which fire hit him on the lower part of his belly. During investigation, the petitioner took the plea of alibi. The learned Additional Prosecutor General, under instructions from the police officer present in Court, submits that the plea of alibi taken by the petitioner was established during investigation. It has further been confirmed by the learned Law Officer that Police after completion of investigation of the case recommended for discharge of the petitioner but that report was not agreed to by the learned Magistrate. Admittedly, nothing was recovered from the petitioner during investigation. All these circumstances if taken into consideration collectively make the case of the petitioner one of further inquiry falling within the ambit of section 497 (2), Code of Criminal Procedure.

3. For the foregoing, this petition is converted into an appeal and the same is allowed. Consequently, Muhammad Akram appellant is admitted to bail subject to his furnishing bail bond in the sum of Rs.200,000/- (Rupees two hundred thousand only) with one surety, in the like amount to the satisfaction of the learned trial Court". Similar is the position in the case in hand, in which the petitioner has been ascribed the role of causing one fire shot landing at the belly of Ehtasham Ali (deceased), two fire shots hitting at the left buttock and right thigh of the complainant and one fire shot landing at the right arm of Farzand Ali, father of the complainant, but no recovery was effected from him by the Investigating Officer, rather he was placed in column No.2 of the report under section 173, Cr.P.C. Even discharge report in this case, was also prepared by the Investigating Officer though the same was disagreed by the learned Illaqa Magistrate.

8. Keeping in view the facts and circumstances of the instant case and seeking guidance from the dictums of law laid down in the cited judgments titled Brig. (Retd.) F.B. Ali and another v. The State (PLD 1975 Supreme Court 506), Ghulam Rasool Mir v. Azad Government of the State of Jammu and Kashmir and others" (1983 PCr.LJ 298 [Azad J&K] Nasar v. The State" (2017 SCMR 130), "Zaigham Ashraf v. The State and others" (2016 SCMR 18) and order dated 13.01.2017 passed in Crl. Petition No.1135-L of 2016 in case titled "Muhammad Akram v. The State etc." this Court is persuaded to accept this petition. Resultantly the petitioner is admitted to bail after-arrest subject to his furnishing bail bonds in the sum of Rs.1,00,000/- with two sureties each in the like amount to the satisfaction of the learned trial court. WA/H-7/L Bail granted.