Jehanzada vs State

2014 M L D 559

[Peshawar]

Before Assadullah Khan Chamkani, J

JEHANZADA---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Application No.1021-P of 2012, decided on 15th August, 2012.

(a)Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/34---Qanun-e-Shahadat (10 of 1984), Art. 38---Qatl-e-amd, common intention---Bail, grant of---Further inquiry---Confession before police---Admissibility as evidence---Unseen occurrence---No ocular account available---No recovery of weapon---Effect---Police found dead bodies of deceased persons during patrolling--- Accused was implicated subsequently with the crime on the information collected by the Investigation Officer---Crime in question was an unseen occurrence---During investigation, Investigation Officer failed to get any ocular account despite the fact that alleged offence took place in front of a place which was a restaurant, hotel and a wedding hall---Accused remained on physical remand for two days but neither weapon used in the commission of crime could be recovered from him nor any discovery was made on pointation of accused, which could connect him with the commission of the alleged offence---Observation of Trial Court that accused confessed his guilt before Investigation Officer was not legal as per Art. 38 of Qanun-e- Shahadat, 1984---Mere heinousness of crime was no ground for refusal of bail if the case was one of further probe---Accused was granted bail, in circumstances.

(b)Criminal Procedure Code (V of 1898)---

----S.497(2)---Bail---Heinousness of offence---Effect---Mere heinousness of crime was no ground for refusal of bail if the case was one of further probe.

Maqsood Anwar Aziz for Petitioner.

Fazle Rehman, A.A.-G. for Respondent.

Date of hearing: 15th August, 2012.

JUDGMENT

ASSADULLAH KHAN CHAMKANI, J.---Petitioner Jehan Zada is seeking bail in case F.I.R. No.647 dated 6-6-2012 registered for offence under section 302/34, P.P.C. at Police Station City Mardan.

2.The contents of F.I.R. reveal that on 6-6-2012 at 10.00 hours complainant Mohsin Fawad, A.S.-I. sent a murasila for registration of the case to the effect that during gusht he came to the spot and found dead bodies of a lady and young guy, who have been murdered by some one through fire arm.

Subsequently, the petitioner was enroped with the crime, on the information collected by the I.O. during investigation, hence he was arrested.

3.Learned counsel for petitioner contended that the petitioner is innocent and falsely implicated in the case, which is an unseen occurrence. Further submitted that prior to the present case, the petitioner was involved in two other untraced cases which are outcome of his application under section 22-A Cr.P.C. filed against the local police, wherein, he was granted bail by the lower court, hence the police being inimical towards him was wrongly enroped and that there is nothing on record to connect the petitioner with the alleged crime.

4.Learned A.A.-G. while opposing this petition contended that the petitioner is well connected with the crime as the motor cycle used in the commission of the offence was recovered from the possession of the petitioner, therefore, on the available record the petitioner is not entitled to the concession of bail.

Arguments heard. Record perused.

5.Admittedly, it is an unseen occurrence. During the investigation the I.O. badly failed to get any ocular account though the alleged occurrence took place in front of 'Al-Sawaira Hotel, Restaurant and Wedding Hall'. The petitioner was arrested on 18-6-2012 and his physical remand was obtained by the I.O. for two days but the I.O. did not succeed in recovering the weapon used in the commission of crime nor any discovery was made upon the pointation of accused, which could connect him with the commission of alleged offence. The observation of the trial court i.e. "the accused/petitioner confessed his guilt before the I.O." is not legal one as

per Article 38 of the Qanun-e-Shahadat Order, 1984, wherein, it is stated that no confession to a police officer shall be proved as against a person accused of any offence.

True, that the tragedy enacted a shocking one but at the same time liberty of a person is equally precious having been guaranteed by the Constitution, which can be curtailed only according to law and settled principle of law. Mere heinousness of crime has been held to be no ground for refusal of bail if the case is one of further probe, so accordingly this petition is allowed and the petitioner is granted bail in the sum of Rs.400,000 with two sureties each in the like amount to the satisfaction of learned Illaqa/Duty Magistrate, who shall ensure that the sureties are local and men of means.

MWA/298/P Bail granted.