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    Crl.p. 1054 2023

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    Ali Alvi
    The Supreme Court of Pakistan granted bail to the petitioner, Akhtar s/o Gul Zameer, who had appealed the denial of his post-arrest bail application by the Peshawar High Court. The Court noted that the petitioner's name was not initially mentioned in the FIR, there were no eyewitnesses to the incident, and the key evidence against the petitioner, including an alleged confession to police and a picture from CCTV footage, required further examination by the trial court. Considering the lack of substantial evidence directly connecting the petitioner to the crime at this stage, and that the co-accused had been granted bail, the Court determined that the case warranted further inquiry and granted the petitioner bail.

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    Crl.p. 1054 2023

    Uploaded by

    Ali Alvi
    38 views5 pages
    The Supreme Court of Pakistan granted bail to the petitioner, Akhtar s/o Gul Zameer, who had appealed the denial of his post-arrest bail application by the Peshawar High Court. The Court noted that the petitioner's name was not initially mentioned in the FIR, there were no eyewitnesses to the incident, and the key evidence against the petitioner, including an alleged confession to police and a picture from CCTV footage, required further examination by the trial court. Considering the lack of substantial evidence directly connecting the petitioner to the crime at this stage, and that the co-accused had been granted bail, the Court determined that the case warranted further inquiry and granted the petitioner bail.

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    crl.p._1054_2023

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    The Supreme Court of Pakistan granted bail to the petitioner, Akhtar s/o Gul Zameer, who had appealed the denial of his post-arrest bail application by the Peshawar High Court. The Court noted that the petitioner's name was not initially mentioned in the FIR, there were no eyewitnesses to the incident, and the key evidence against the petitioner, including an alleged confession to police and a picture from CCTV footage, required further examination by the trial court. Considering the lack of substantial evidence directly connecting the petitioner to the crime at this stage, and that the co-accused had been granted bail, the Court determined that the case warranted further inquiry and granted the petitioner bail.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    38 views5 pages

    Crl.p. 1054 2023

    Uploaded by

    Ali Alvi
    The Supreme Court of Pakistan granted bail to the petitioner, Akhtar s/o Gul Zameer, who had appealed the denial of his post-arrest bail application by the Peshawar High Court. The Court noted that the petitioner's name was not initially mentioned in the FIR, there were no eyewitnesses to the incident, and the key evidence against the petitioner, including an alleged confession to police and a picture from CCTV footage, required further examination by the trial court. Considering the lack of substantial evidence directly connecting the petitioner to the crime at this stage, and that the co-accused had been granted bail, the Court determined that the case warranted further inquiry and granted the petitioner bail.

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    IN THE SUPREME COURT OF PAKISTAN

    (Appellate Jurisdiction)

    PRESENT:

    MR. JUSTICE JAMAL KHAN MANDOKHAIL


    MR. JUSTICE MUHAMMAD ALI MAZHAR
    MR. JUSTICE SYED HASAN AZHAR RIZVI

    CRIMINAL PETITION NO.1054 OF 2023


    (On appeal from the judgment dated 09.08.2023
    passed by the Peshawar High Court, Peshawar in
    Cr.M(B.A) No.2414-P/2023)

    Akhtar s/o Gul Zameer …Petitioner

    VERSUS

    Khwas Khan and another ...Respondents

    For the Petitioner: Mr. Sher Aman Khan, ASC

    For the State: Mr. Altaf Khan, Addl. AG, KPK


    Mr. Ziarat Gul, SI, Mardan

    For Respondent No.1: In-Person

    Date of Hearing: 23.10.2023

    Order

    MUHAMMAD ALI MAZHAR, J:- This Criminal Petition is directed


    against the Order dated 09.08.2023, passed by the learned Peshawar
    High Court in Cr.M(B.A) No.2414-P/2023 whereby the application
    moved for post-arrest bail was dismissed.

    2. The complainant lodged FIR No. 1177/2022 on 11.12.2022 under


    Sections 302, 201, 120-B and 109 of the Pakistan Penal Code, 1860
    (“PPC”), and Section 15 of the Khyber Pakhtunkhwa (KPK) Arms Act,
    2013 (“Arms Act”) at Police Station Rustam, District Mardan.
    According to the minutiae of the First Information Report, the
    complainant Khawas Khan initially reported the incident to the local
    police against the unknown persons and alleged that on the day of
    occurrence he was present in his block factory where he received
    Crl.P.No.1054/2023 -2-

    information about the murder of his brother, namely Pardul Khan,


    who was killed after being fired at by unknown persons. He thereafter
    rushed to the hospital where he found his brother dead. The
    complainant, having no enmity or animosity, reported the incident to
    the local police against unknown accused persons for the murder of
    his brother. The record further reflects that on 15.12.2022, the
    complainant appeared before the Judicial Magistrate-II, Mardan for
    recording his statement under Section 164 of the Code of Criminal
    Procedure, 1898 (“Cr.P.C.”) in which he implicated the petitioner for
    the murder of his brother, allegedly on account of a previous quarrel
    between the deceased and petitioner. After the arrest of the petitioner,
    the alleged involvement of two co-accused, Inzar Gul and Ali Bahadar,
    also came to the surface during the investigation, revealing that Inzar
    Gul, the paternal uncle of the deceased, paid head money to Ali
    Bahadar, the co-accused, who hired the petitioner for committing the
    murder on the motive of abduction of Mst. Bakht Bibi, niece of Inzar
    Gul.

    3. The learned counsel for the petitioner argued that no reasonable


    grounds exist to connect the petitioner with the commission of the
    offence. No such allegation was leveled by the complainant in the FIR
    against the petitioner, rather, later on, with consultation and
    deliberation, the petitioner was charged for the commission of the
    offence. It was further contended that neither anything was recovered
    from the petitioner, nor any specific role has been attributed to the
    accused, nor is there any eye witness of the occurrence. He further
    argued that the investigation has been completed which itself revealed
    that the case was one of further inquiry. He further averred that the
    other co-accused in the instant case have already been released on
    bail, hence the present accused is also entitled to the concession of
    bail on the rule of consistency.

    4. The learned Additional Advocate General for KPK argued that during
    the investigation the petitioner was found guilty. He further argued
    that when the petitioner absconded, a 30 bore pistol was recovered
    from his brothers, Muzamil and Ajab Khan, from a common abode
    and, according to Forensic Report, two crime empties were fired from
    the same pistol, hence a separate FIR No.1208/2002 was also lodged
    against Muzamill and Ajab Khan under Section 15 of the Arms Act at
    Police Station Rustam, District Mardan. However, he admits that
    Crl.P.No.1054/2023 -3-

    neither the said pistol was recovered from the present petitioner, nor
    he has been implicated in the subsequent FIR. He further relied on a
    picture of a motor bike captured through CCTV footage, showing the
    petitioner sitting on the back seat thereof; however he admitted that
    this picture was not captured from the scene of the crime.

    5. Arguments heard. It is an admitted position that the name of the


    petitioner is not mentioned in the FIR which was against some
    unknown persons. There is also no eye witness of the incident. The
    pistol was recovered in the absence of the petitioner, from his brother,
    for which a separate FIR has been lodged. Even if the empties
    recovered from the scene of the crime are matched, it is to be seen by
    the Trial Court after recording evidence whether the bullets were shot
    by the petitioner or not. Reliance on a single picture captured from a
    CCTV system cannot be treated as a substantial piece of evidence at
    this stage, rather it is subject to the evidence, as may be recorded by
    the Trial Court, whether it has any nexus to the scene of crime. The
    FIR was lodged on 11.12.2002 against unknown persons but on
    15.12.2022 the complainant, by means of statement recorded under
    Section 164, Cr.P.C., implicated the petitioner on the ground that
    there was a quarrel between the deceased and the petitioner, which
    alleged incident was in the knowledge of the complainant, but no such
    indication or disclosure was made while lodging the FIR. According to
    the investigation, the petitioner disclosed to the police that Ali Bhadur
    paid head money for the deceased and the head money was given by
    Inzar Gul for payment to the petitioner. Ali Bahdur was already on bail
    while Inzar Gul was granted bail by this Court vide Order dated
    09.06.2023 in Criminal Petition No.352/2023. So far as the alleged
    confession of the petitioner before police during investigation is
    concerned, the niceties of Article 38 of the Qanun-e-Shahadat Order
    1984 are quite lucid that no confession made to a police officer shall
    be proved as against a person accused of any offence, while Article 39
    emphasizes that, subject to Article 40, no confession made by any
    person whilst he is in the custody of a police officer, unless it be made
    in the immediate presence of a Magistrate, shall be proved as against
    such person. Seemingly, a confession made before the police is not
    made admissible by dint of the aforesaid provisions of the Qanun-e-
    Shahadat Order 1984 in order to preserve and safeguard the
    philosophy of safe administration of criminal justice and is also based
    Crl.P.No.1054/2023 -4-

    on public policy. In the aforesaid backdrop, we are sanguine that the


    case of petitioner requires further inquiry to prove his guilt which can
    only be thrashed out after recording of evidence in the Trial Court.

    6. It is a well settled notion of law that 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 a just conclusion. It pre-supposes the tentative assessment
    which may create doubt with respect to the involvement of the accused
    in the crime. The law of bails is not a stagnant law but is developing
    with the exigencies of time. The expression "reasonable grounds" as
    contained under Section 497, Cr.P.C., necessitated the prosecution to
    show that it is in possession of sufficient material or evidence to
    demonstrate that accused had committed an offence falling within the
    prohibitory limb of Section 497, Cr.P.C. However for seeking the
    concession of bail, the accused person has to show that the material
    or evidence collected during investigation against him creates
    reasonable doubt or suspicion in the prosecution case. While deciding
    bail applications, it is the foremost duty of the Courts to apply a
    judicious mind tentatively for reaching the just and proper conclusion
    regarding whether reasonable grounds are made out or not to enlarge
    the accused on bail, and the expression ‘reasonable grounds’ signifies
    and corresponds to the grounds which are legally rational, acceptable
    in evidence and attractive to the judicial mind, as opposed to being
    imaginative, fallacious and/or presumptuous. Whenever reasonable
    doubt ascends with regard to the involvement of an accused person in
    the crime or about the certainty or probability of the prosecution case
    and the evidence proposed to be produced in support of the charge in
    Court during trial, the accused should not be deprived of the benefit of
    bail and it would be better to keep him on bail than in jail. The basic
    idea is to enable the accused to answer the criminal prosecution
    against him rather than to make him rot behind bars. The accused is
    entitled to expeditious access to justice, which includes the right to a
    fair and expeditious trial without any unreasonable or inordinate
    delay. Certain basic principles regarding grant or refusal of bail are
    settled i.e. that bail cannot be withheld as punishment; every person is
    presumed to be innocent unless found guilty by a competent court;
    every person is entitled to a fair trial, which includes a trial without
    inordinate delay; and that the basic philosophy of criminal
    Crl.P.No.1054/2023 -5-

    jurisprudence is that the prosecution has to prove its case beyond


    reasonable doubt and this principle applies at all stages including the
    pre-trial stage, and even at the time of deciding whether the accused is
    entitled to bail or not.

    7. This Criminal Petition for leave to appeal was fixed for hearing on
    23.10.2023 when the same was converted into appeal and allowed vide
    our short order, which is reproduced as under:

    “For the reasons to be recorded later, this petition is


    converted into an appeal and allowed. The petitioner is
    granted post-arrest bail subject to his furnishing surety
    bond in the sum of Rs.2,00,000/- with one surety in the
    like amount to the satisfaction of the Trial Court. He shall
    be released forthwith if not required in any other case.”

    8. Above are the reasons assigned in support of our short order. The
    observations made in this order are tentative in nature and shall not
    prejudice the case of either party in the Trial Court.

    Judge

    Judge

    Judge

    Islamabad
    23rd October, 2023
    Khalid
    Approved for reporting.

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