PLJ 2012 SC 169
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, HCJ, Khilji Arif Hussain & Amir Hani Muslim, JJ.
MUHAMMAD ABBASI--Petitioner
versus
STATE and another--Respondents
Crl. Petition No. 278 of 2011, decided on 13.7.2011.
(On appeal from the judgment dated 21.4.2011 passed by the Islamabad High Court, Islamabad in Criminal Misc. No. 97-B/2011).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(2)--Bail, refusal of--Heinous criminal case--Further inquiry--Applicability--Mere possibility of further inquiry which exists almost in every criminal case, is no ground for treating the matter as one u/S. 497(2), Cr.P.C. and it is not possible to release the accused notwithstanding the fact that he was involved in heinous criminal case, in case, where eye-witnesses had duly implicated him with commission of offence. [P. 172] A
PLD 1988 SC 621, 2002 SCMR 1886 & 2010 SCMR 61, ref.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 161 & 497--Scope--Bail, refusal of--Assessment of evidence--Two versions--Nominated with specific role--Recovery of crime weapon--Validity--While deciding bail application of an accused, Court had to mainly rely upon the material brought on record by prosecution including FIR, statement of complainant u/S. 161, Cr.P.C. as well as incriminating evidence for tentative assessment against accused to assess whether accused was involved in commission of offence or not--There were two versions regarding incident and truthfulness was to be decided by trial Court but in view of statements of eye witnesses duly supported, prima-facie involvement of accused could not be over ruled. [P. 173] B
Ipsi dixit--
----Ipsi dixit the opinion of investigation is not binding on Court which has to formulate its opinion independently after examining record of the case. [P. 173] C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 493--Islamabad High Court--Prosecution agency--Scope--After establishment of Islamabad High Court, prosecution agency of Punjab is not responsible to conduct cases pertaining to Islamabad territory except when they were assessed to do so--Supreme Court directed authorities to appoint prosecutor u/S. 493, Cr.P.C. [P. 163] D
Syed Zafar Ali Shah, Sr. ASC for Petitioner.
Raja Aleem Abbasi, DAG for State.
Mr. Muhammad Ilyas Siddiqui, ASC and Mr. Mehmood A. Sheikh, AOR for Complainant.
Date of hearing: 13.7.2011.
Judgment
Iftikhar Muhammad Chaudhry, CJ.--This petition has been filed for leave to appeal against the judgment dated 21.4.2011 passed by the Islamabad High Court, Islamabad in Criminal Misc. No. 97-B/2011, whereby petition filed by the petitioner for grant of bail was dismissed.
2. Precisely stating facts of the case as per FIR No. 52/2010 are that Mst. Ghulam Fatima submitted written application to SHO, PS Bhara Kahu stating that on 13.3.2010 at 8.30 am. her daughter in law Nuzhat Abbas came to her and told that she alongwith Naseer Ahmed, deceased were coming to meet her and when they reached Islamabad Highway, near portrait of Quid-e-Azam, a silver color vehicle bearing Registration No. 913 crossed them and stopped ahead while intercepting their motorbike; that petitioner Muhammad Abbasi and co-accused Liaquat Abbasi both armed with pistol, accompanied by two other persons alighted from the vehicle; that petitioner Muhammad Abbasi and others put Naseer Ahmad deceased in the vehicle on gun point and one of them also took away his motorbike. The complainant called her son-in-law Abdul Rehman PW and they proceeded towards Bani Gala in taxi and when reached the under construction house of petitioner, they witnessed that the petitioner, his co-accused Liaquat and two unknown persons were firing at complainant's son Naseer Ahmad on the roof top of the said house, Motive for the occurrence is previous litigation between the parties. On the said report, FIR u/S. 302/34 PPC was registered at Police Station Bhara Kahu.
3. The other version of the case was reported by the present accused/petitioner at 3:34 p.m. on the same day with the allegation that a man had approached him on the roof of his house at 10:00 am and made two fires at him with pistol which crossed his trousers. He however, overpowered Naseer Ahmad, but in the meanwhile another man came and hit on his (accused) head with an iron rod. At the same time, firing started from the road and one of the fires hit Naseer Ahmad who died at the spot while he also received injuries.
4. The petitioner approached the trial Court for bail after arrest on 15.6.2010 which was dismissed on 22.6.2010. Similarly once again the second time on fresh grounds he moved for post arrest bail, which was dismissed vide order dated 22.10.2010. Appeal before the Islamabad High Court, Islamabad against the said order also failed vide impugned order. Hence this petition for leave to appeal.
5. Learned counsel for the petitioner contended that the matter requires further inquiry as there are two versions in the instant case and it is to be determined that which version is correct because the Investigating Officer had discarded the prosecution story stated by Mst. Ghulam Fatima and supported the version of the accused. He further submitted that the case is also of further inquiry on the point that the deceased who was a proclaimed offender why he was found dead on the roof of the petitioner. Learned counsel next contended that learned High Court was not justified not to give weightage to the opinion of the investigating officer.
6. Learned counsel for the complainant vehemently opposed the bail application and stated that he has been nominated in the FIR with a specific role. The eye-witnesses have implicated the petitioner in their statements before the police. The dead body of the deceased as well as his motorcycle was recovered from the house of the petitioner.
7. Raja Aleem Abbasi, learned DAG stated that Challan has been submitted on 28.6.2010 and after framing of the charge on 18.9.2010, the trial has commenced. Out of seven, three witnesses namely Ahsan Ali, Abdul Ghaffar and Nuzhat Abbas have been examined. Muhammad Khan, who was gunman of the accused, has supported the prosecution story.
8. We have heard the learned counsel for the parties and have gone through the material available on record.
9. The case of the prosecution is that the deceased was kidnapped by the petitioner and when the complainant along with the eye-witnesses reached the house of the petitioner, saw the petitioner making fire shots at the deceased who succumbed to injuries at the spot. On the other hand the version of the accused is that the deceased himself went to the house of the petitioner and made fire shots which went through his shalwar. The petitioner over powered the deceased when someone hit him on his head with some iron rod. At the same time the companions of the deceased started firing from the street which hit the deceased and he died at the spot.
10. The learned counsel for the petitioner has mainly emphasized that the case is one of the further inquiry, therefore, the petitioner is entitled for grant of bail. It is well settled that mere possibility of further inquiry which exists almost in every criminal case, is no ground for treating the matter as one under sub-section (2) of Section 497 Cr.P.C. and it is not possible to release the accused notwithstanding the fact that he is involved in heinous criminal case, particularly, in the case where the eye-witnesses have duly implicated him with the commission of offence. Reference in this behalf may be made to the cases of Asmatullah Khan vs. Bazi Khan (PLD 1988 SC 621), Mst. Parveen Akhtar vs. The State (2002 SCMR 1886), The State Thr. D.G. ANF vs. Abdul Ghani, (2010 SCMR 61).
11. It is to be noted that the petitioner has been nominated in the FIR and specific role has been attributed to him. The recovery of crime weapon has been affected from the petitioner. In the statements recorded before the police, the complainant and the other eye-witnesses have implicated the petitioner for committing the crime. Muhammad Khan, who is the employee of the petitioner himself appeared before the police and recorded his statement u/S. 161 Cr.P.C. wherein he stated that while working in the under construction house of the petitioner, he heard the fire shots and went to the roof top of the house where he saw the dead body of the deceased, whereas the petitioner was standing near the dead body having a pistol in hand. It is to be noted that while deciding the bail application of an accused the Courts have to mainly rely upon the material brought on record by prosecution including FIR, statement of complainant under Section 161 Cr.P.C. as well as incriminating/circumstantial evidences etc. for tentative assessment against accused to assess whether accused is involved in the commission of offence or not. In the instant case, there are two versions regarding the incident and the truthfulness of the same is to be decided by the trial Court but in view of the statements of eye-witnesses duly supported by Muhammad Khan, Abdul Ghaffar and Ali Hassan, prima-facie it can be held that petitioner's involvement can not be over ruled. Therefore, instead of embarking upon the facts in detail, lest it may cause prejudice to the case of either of the parties, the petitioner is not entitled to be released on bail.
12. In the instant case the police after recording the statements of witnesses as well as the accused gave its own findings discarding the statement of Mst. Ghulam Fatima, complainant to the extent of abduction of Naseer Ahmad thus, somehow accepted the version of the accused party. It is also well settled that ipsi dixit the opinion of investigation is not binding on the Court, which has to formulate its opinion independently after examining the record of the case. Reference in the behalf may be made to the cases of Manzoor vs. The State (PLD 1972 SC 81) Mst. Qudrat Bibi vs. Muhammad Iqbal (2003 SCMR 68), Naseem Malik vs. The State (2004 SCMR 283) and Mudassar Altaf vs. The State (2010 SCMR 1861).
13. It is to be noted that in terms of Section 173 Cr.P.C. the police is bound to submit challan within a period of 14 days and directions have been issued time and again by this Court to the Inspector Generals of Police to ensure submission of challan within a period of 14 days. In the instant case the challan has been submitted before the Court of law, after about two months, in violation of the provision of law as well as the directions issued by this Court in the case of Hakeem Mumtaz Ahmad vs. The State (PLD 2002 SC 590). Therefore, the learned DAG was asked to furnish the list of all the Investigating Officers who remained associated with the investigation of the case. Learned DAG is directed to immediately take up this matter with the I.G. Police for initiating action against the police officers who are responsible for not submitting challan in Court as stipulated by law.
14. After the establishment of the Islamabad High Court, the prosecution agency of Province of Punjab is not responsible to conduct cases pertaining to Islamabad Territory except when they are asked to do so, therefore, independent prosecutors are required to be appointed under Section 493 Cr.P.C. When we have drawn attention of learned Attorney General, who is present in the Court, stated that this matter has already been taken up with competent authority, who is likely to do needful shortly.
15. The perusal of above record indicates that despite of pendency of challan for the last about more then 12 months, the case has not been completed for which apparently there is no plausible explanation, therefore, learned trial Court is directed to complete trial of this case within two months, after receipt hereof and send copy of the judgment to the Registrar of this Court for our perusal in Chambers. Copy of this order be sent to learned Chief Justice of Islamabad High Court for perusal and ensuring that trial of the accused is completed within stipulated time, noted hereinabove.
Thus, petition for leave to appeal is dismissed.
(R.A.) Appeal dismissed.
[Appellate Jurisdiction]
Present: Iftikhar Muhammad Chaudhry, HCJ, Khilji Arif Hussain & Amir Hani Muslim, JJ.
MUHAMMAD ABBASI--Petitioner
versus
STATE and another--Respondents
Crl. Petition No. 278 of 2011, decided on 13.7.2011.
(On appeal from the judgment dated 21.4.2011 passed by the Islamabad High Court, Islamabad in Criminal Misc. No. 97-B/2011).
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(2)--Bail, refusal of--Heinous criminal case--Further inquiry--Applicability--Mere possibility of further inquiry which exists almost in every criminal case, is no ground for treating the matter as one u/S. 497(2), Cr.P.C. and it is not possible to release the accused notwithstanding the fact that he was involved in heinous criminal case, in case, where eye-witnesses had duly implicated him with commission of offence. [P. 172] A
PLD 1988 SC 621, 2002 SCMR 1886 & 2010 SCMR 61, ref.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 161 & 497--Scope--Bail, refusal of--Assessment of evidence--Two versions--Nominated with specific role--Recovery of crime weapon--Validity--While deciding bail application of an accused, Court had to mainly rely upon the material brought on record by prosecution including FIR, statement of complainant u/S. 161, Cr.P.C. as well as incriminating evidence for tentative assessment against accused to assess whether accused was involved in commission of offence or not--There were two versions regarding incident and truthfulness was to be decided by trial Court but in view of statements of eye witnesses duly supported, prima-facie involvement of accused could not be over ruled. [P. 173] B
Ipsi dixit--
----Ipsi dixit the opinion of investigation is not binding on Court which has to formulate its opinion independently after examining record of the case. [P. 173] C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 493--Islamabad High Court--Prosecution agency--Scope--After establishment of Islamabad High Court, prosecution agency of Punjab is not responsible to conduct cases pertaining to Islamabad territory except when they were assessed to do so--Supreme Court directed authorities to appoint prosecutor u/S. 493, Cr.P.C. [P. 163] D
Syed Zafar Ali Shah, Sr. ASC for Petitioner.
Raja Aleem Abbasi, DAG for State.
Mr. Muhammad Ilyas Siddiqui, ASC and Mr. Mehmood A. Sheikh, AOR for Complainant.
Date of hearing: 13.7.2011.
Judgment
Iftikhar Muhammad Chaudhry, CJ.--This petition has been filed for leave to appeal against the judgment dated 21.4.2011 passed by the Islamabad High Court, Islamabad in Criminal Misc. No. 97-B/2011, whereby petition filed by the petitioner for grant of bail was dismissed.
2. Precisely stating facts of the case as per FIR No. 52/2010 are that Mst. Ghulam Fatima submitted written application to SHO, PS Bhara Kahu stating that on 13.3.2010 at 8.30 am. her daughter in law Nuzhat Abbas came to her and told that she alongwith Naseer Ahmed, deceased were coming to meet her and when they reached Islamabad Highway, near portrait of Quid-e-Azam, a silver color vehicle bearing Registration No. 913 crossed them and stopped ahead while intercepting their motorbike; that petitioner Muhammad Abbasi and co-accused Liaquat Abbasi both armed with pistol, accompanied by two other persons alighted from the vehicle; that petitioner Muhammad Abbasi and others put Naseer Ahmad deceased in the vehicle on gun point and one of them also took away his motorbike. The complainant called her son-in-law Abdul Rehman PW and they proceeded towards Bani Gala in taxi and when reached the under construction house of petitioner, they witnessed that the petitioner, his co-accused Liaquat and two unknown persons were firing at complainant's son Naseer Ahmad on the roof top of the said house, Motive for the occurrence is previous litigation between the parties. On the said report, FIR u/S. 302/34 PPC was registered at Police Station Bhara Kahu.
3. The other version of the case was reported by the present accused/petitioner at 3:34 p.m. on the same day with the allegation that a man had approached him on the roof of his house at 10:00 am and made two fires at him with pistol which crossed his trousers. He however, overpowered Naseer Ahmad, but in the meanwhile another man came and hit on his (accused) head with an iron rod. At the same time, firing started from the road and one of the fires hit Naseer Ahmad who died at the spot while he also received injuries.
4. The petitioner approached the trial Court for bail after arrest on 15.6.2010 which was dismissed on 22.6.2010. Similarly once again the second time on fresh grounds he moved for post arrest bail, which was dismissed vide order dated 22.10.2010. Appeal before the Islamabad High Court, Islamabad against the said order also failed vide impugned order. Hence this petition for leave to appeal.
5. Learned counsel for the petitioner contended that the matter requires further inquiry as there are two versions in the instant case and it is to be determined that which version is correct because the Investigating Officer had discarded the prosecution story stated by Mst. Ghulam Fatima and supported the version of the accused. He further submitted that the case is also of further inquiry on the point that the deceased who was a proclaimed offender why he was found dead on the roof of the petitioner. Learned counsel next contended that learned High Court was not justified not to give weightage to the opinion of the investigating officer.
6. Learned counsel for the complainant vehemently opposed the bail application and stated that he has been nominated in the FIR with a specific role. The eye-witnesses have implicated the petitioner in their statements before the police. The dead body of the deceased as well as his motorcycle was recovered from the house of the petitioner.
7. Raja Aleem Abbasi, learned DAG stated that Challan has been submitted on 28.6.2010 and after framing of the charge on 18.9.2010, the trial has commenced. Out of seven, three witnesses namely Ahsan Ali, Abdul Ghaffar and Nuzhat Abbas have been examined. Muhammad Khan, who was gunman of the accused, has supported the prosecution story.
8. We have heard the learned counsel for the parties and have gone through the material available on record.
9. The case of the prosecution is that the deceased was kidnapped by the petitioner and when the complainant along with the eye-witnesses reached the house of the petitioner, saw the petitioner making fire shots at the deceased who succumbed to injuries at the spot. On the other hand the version of the accused is that the deceased himself went to the house of the petitioner and made fire shots which went through his shalwar. The petitioner over powered the deceased when someone hit him on his head with some iron rod. At the same time the companions of the deceased started firing from the street which hit the deceased and he died at the spot.
10. The learned counsel for the petitioner has mainly emphasized that the case is one of the further inquiry, therefore, the petitioner is entitled for grant of bail. It is well settled that mere possibility of further inquiry which exists almost in every criminal case, is no ground for treating the matter as one under sub-section (2) of Section 497 Cr.P.C. and it is not possible to release the accused notwithstanding the fact that he is involved in heinous criminal case, particularly, in the case where the eye-witnesses have duly implicated him with the commission of offence. Reference in this behalf may be made to the cases of Asmatullah Khan vs. Bazi Khan (PLD 1988 SC 621), Mst. Parveen Akhtar vs. The State (2002 SCMR 1886), The State Thr. D.G. ANF vs. Abdul Ghani, (2010 SCMR 61).
11. It is to be noted that the petitioner has been nominated in the FIR and specific role has been attributed to him. The recovery of crime weapon has been affected from the petitioner. In the statements recorded before the police, the complainant and the other eye-witnesses have implicated the petitioner for committing the crime. Muhammad Khan, who is the employee of the petitioner himself appeared before the police and recorded his statement u/S. 161 Cr.P.C. wherein he stated that while working in the under construction house of the petitioner, he heard the fire shots and went to the roof top of the house where he saw the dead body of the deceased, whereas the petitioner was standing near the dead body having a pistol in hand. It is to be noted that while deciding the bail application of an accused the Courts have to mainly rely upon the material brought on record by prosecution including FIR, statement of complainant under Section 161 Cr.P.C. as well as incriminating/circumstantial evidences etc. for tentative assessment against accused to assess whether accused is involved in the commission of offence or not. In the instant case, there are two versions regarding the incident and the truthfulness of the same is to be decided by the trial Court but in view of the statements of eye-witnesses duly supported by Muhammad Khan, Abdul Ghaffar and Ali Hassan, prima-facie it can be held that petitioner's involvement can not be over ruled. Therefore, instead of embarking upon the facts in detail, lest it may cause prejudice to the case of either of the parties, the petitioner is not entitled to be released on bail.
12. In the instant case the police after recording the statements of witnesses as well as the accused gave its own findings discarding the statement of Mst. Ghulam Fatima, complainant to the extent of abduction of Naseer Ahmad thus, somehow accepted the version of the accused party. It is also well settled that ipsi dixit the opinion of investigation is not binding on the Court, which has to formulate its opinion independently after examining the record of the case. Reference in the behalf may be made to the cases of Manzoor vs. The State (PLD 1972 SC 81) Mst. Qudrat Bibi vs. Muhammad Iqbal (2003 SCMR 68), Naseem Malik vs. The State (2004 SCMR 283) and Mudassar Altaf vs. The State (2010 SCMR 1861).
13. It is to be noted that in terms of Section 173 Cr.P.C. the police is bound to submit challan within a period of 14 days and directions have been issued time and again by this Court to the Inspector Generals of Police to ensure submission of challan within a period of 14 days. In the instant case the challan has been submitted before the Court of law, after about two months, in violation of the provision of law as well as the directions issued by this Court in the case of Hakeem Mumtaz Ahmad vs. The State (PLD 2002 SC 590). Therefore, the learned DAG was asked to furnish the list of all the Investigating Officers who remained associated with the investigation of the case. Learned DAG is directed to immediately take up this matter with the I.G. Police for initiating action against the police officers who are responsible for not submitting challan in Court as stipulated by law.
14. After the establishment of the Islamabad High Court, the prosecution agency of Province of Punjab is not responsible to conduct cases pertaining to Islamabad Territory except when they are asked to do so, therefore, independent prosecutors are required to be appointed under Section 493 Cr.P.C. When we have drawn attention of learned Attorney General, who is present in the Court, stated that this matter has already been taken up with competent authority, who is likely to do needful shortly.
15. The perusal of above record indicates that despite of pendency of challan for the last about more then 12 months, the case has not been completed for which apparently there is no plausible explanation, therefore, learned trial Court is directed to complete trial of this case within two months, after receipt hereof and send copy of the judgment to the Registrar of this Court for our perusal in Chambers. Copy of this order be sent to learned Chief Justice of Islamabad High Court for perusal and ensuring that trial of the accused is completed within stipulated time, noted hereinabove.
Thus, petition for leave to appeal is dismissed.
(R.A.) Appeal dismissed.
No comments:
Post a Comment