IN THE SUPREME COURT OF PAKISTAN
CRL PET. NO. 950/2021
ORDER:
This criminal petition for leave to appeal is directed against the order passed by the Lahore High Court Rawalpindi Bench on 29-7-2021 in Crl. Misc.No. 1339-B/2021, by means of which the petitioners applied for bail after arrest in FIR No. 114 PPC at Police Station, Lillah, District Jehlum was dismissed.
Gist of FIR lodged by the complainant on 23-3-2021 divulges the allegations that on the day of occurrence when his brother Qazi Rab Nawaz was going to his house on a motor bike, the present petitioners armed with Kalashankov along with Khawar Shehzad armed withh pistol and an unknown person with two accomplices Babar Shahzad and Sarsa Khan, both armed with pistols, intercepted the deceased and Petitioner No. 1 made burst shot with his Kalashankov on the front of his abdomen, thereafter the Petitioner No. 2 made burst short with his Klanshankov on the left side of the body of deceased. As claimed by the complainant the occurrence was witnessed by Faisal Nawaz and Tayyab Rehman who were following Rab Nawaz, whereas complainant himself reached at the spot after hearing the fire shots when accused persons were escaping from the crime scene.
Learned Counsel for the petitioners argued that the learned High Court while rejecting the bail plea failed to consider the major contradictions in between ocular account and medical evidence. The complainant has also filed private complaint regarding the same occurrence but with different allegations. It was further contended that the detention of the petitioners would serve no useful purpose when investigating agency has declared them innocent and placed their names in Column No. 2 of the challan. The learned counsel further contended that the High Court was wrongly discarded the result of investigation based on CCTV footage showing the presence of petitioners at a different spot at the time of occurrence. The learned counsel invited our attention to the autopsy report and argued that allegedly the Petitioner No. 1 made fire shots which caused injuries to the deceased on front of his abdomen but the medical evidence contradicts this allegation as no entry was fined out on the front side of abdomen. This post mortem report describes all injuries on upper part of the body with entry wounds from back side.
Heard arguments.
The insight and astutes of further inquiry is a question which must have been 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 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.
This court in the case of Hakim Ali Zardari Vs. State (PLD 1998 Supreme Court 1) held that the law of bails is not a static law but is growing all the time moulding itself with the exigencies of time. The main purpose of keeping an under trial accused in detention is to prevent repetition of the offence with which he is charged or perpetration of some other offence and to secure his attendance at the trial. Such object has to be achieved within the framework of a man’s right to liberty, which he enjoys along with other rights, collectively known as his freedom.
Whereas in the case of Ziagham Ashraf Vs. State & Othrs (2016 SCMR 18) this court make it clear that it is for the prosecution to show sufficient material/evidence, constituting ‘reasonable grounds’ that accused has committed an offence falling within the prohibitory limb of section 497 Cr. Pc whereas the accused has to show that the evidence/material collected by prosecution creates reasonable doubt in the prosecution. If the accused is ultimately acquitted at the trial then no reputation or compensation can be awarded to him for the long incarceration. According to the dictum laid down in the case of Chaudry Shujat Hussain V. The State (1995 SCMR 1249) this court held while deciding the bail application court has to tentatively look to the facts and circumstance of the case and in order to ascertain whether reasonable grounds exist or not, the court should not probe into the merit of the case but restrict itself to the material placed before it by the prosecution to see whether some tangible evidence is available against the accused. The rule deductible from Alam Zeb and another Vs. State and others (PLD 2014 SC 760) expresses that reasonable grounds have to be grounds which are illegally tenable, admissible in evidence and appealing to a reasonable judicial mind as opposed to being whimsical, arbitrary or presumptuous. The prosecution in order to make out a case for refusal of bail to an accused is primarily supposed to place on record material on basis of which he is believed to be involved in a non-bailable offence, but in absence of such material the court for the purpose of releasing the accused on bail, instead of dilating upon the facts of the case in details, can dispose of the matter by holding that his detention is unjustified or unreasonable. Reference to be made to PLD 1996 SC 241 & PLD 2002 SC 572.
Recently, the court in the case of Muhammad Sarfraz Ansari Vs. State & Othrs (PLD 2021 SC 738) held that at the bail stage the court is not to make deeper examination and appreciation of evidence collected during investigation or to the conduct anything in the nature of a preliminary trial to determine the accused’s guilt or innocence. However, for deciding thee prayer of an accused for bail, the question whether or not there exist reasonable grounds for believing that he has committed the alleged offence cannot be decided in vaccum. The court, for answering the said question, has to look at the material available on record when the bail is applied for and be satisfied that there is, or is not, prima facie some tangible evidence which if he left unrebutted, may lead to the inference in Civil Petitions No. 3637 & 3638/2019 (Muhammad Iqbal Khan Vs. NAB) this court held that mere accusation of an offence would not be sufficient to disentitle an accused from being bailed out. There should be “reasonable ground” as distinguished from mere allegation or suspicion.
We have cautiously scanned and ruminated the material placed on record and in our tentative assessment, there are no reasonable grounds for believing the petitioners have committed the alleged offences but there are sufficient grounds for further inquiry in terms of Section 497(2) of Cr. Pc therefore on 7-10-2021 for the reasons to be recorded later, this criminal petition was converted into appeal and allowed. The petitioners were granted post arrest bail on furnishing bail bonds to the tune of Rs. 200, 000/- with two sureties each in the like amount to the satisfaction of the Trial Court. Above are the reasons in the aid of our short order. The observations made in this order are tentative in nature and shall not prejudice in case of either party before the trial court.
