Supreme court cancelled bail granted by high court in murder case.

فیصلے میں جو منفرد نکتہ طے کیا گیا وہ یہ ہے کہ **سپریم کورٹ نے لاہور ہائی کورٹ کے ضمانتی فیصلے کو ** تفتیشی افسر کی رائے پر حد سے زیادہ انحصار کرنے کی وجہ سے **حکم کی خرابی** کی بنیاد پر الٹ دیا۔ سپریم کورٹ نے پایا کہ ہائی کورٹ نے ایسے ٹھوس شواہد کو نظر انداز کر دیا ہے، جن میں گواہوں کی شہادتیں اور میڈیکل رپورٹس شامل ہیں، جو اس جرم میں ملزم کے ملوث ہونے کو ظاہر کرتی ہیں۔ فیصلے میں اس بات پر زور دیا گیا کہ ملزم کے ملوث ہونے اور ضمانت کے استحقاق کے غلط استعمال کے بہت زیادہ شواہد کے پیش نظر ضمانت نہیں دی جانی چاہیے، یہ ایک اہم اصول کی وضاحت کرتا ہے کہ ضمانت کے احکامات تمام متعلقہ شواہد کے جامع جائزے پر مبنی ہونے چاہئیں۔

IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

PRESENT:

Mr. Justice Syed Hasan Azhar Rizvi

fAr

Criminal Petitions

No.528-L and I068 -L of 2023

(Against orders dated OS.05.2023 and 06.09.2023, passed by the

Lahore High Court, Lahore in Criminal Miscellaneous Nos.22217-B and 41247-B of 2023)

Mr. Justice Amin-ud-Din Khan

Shaukat Ali

(in ell.P.No.528-L/2023)

Azeem Hassan Mushtaq

(in Cd.P.No. 1068-1,/2023)

. . .Petitioner(s)

Versus

The State through Prosecutor General,

Punjab, Lahore and Ali Ashraf

(in Cd.P.No.528-L/2023)

The State through Prosecutor General,

Punjab, Lahore and Shaukat Ali

(in CrI.P.No. 1068-L/2023)

. . .Respondent(s)

For the Petitioner(s)

Mr. Irfan Sadiq Tarar, ASC

(in ell.P.No.528-L/2023)

Ch. Waseem Ahmed Gujar, ASC

(in Cd.P.No. 1068-L/2023)

Through video link Lahore

For Respondent No.2

Mr. Javed Imran Ranjha, ASC

along with petitioner

(in Cd.P.No.528-L/2023)

Through video link Lahore

Mr. Irfan Sadiq Tarar, ASC

(in (;rl.P.No.1068-1,/2023)

For the State

Mr. Muhammad Jaffar,

Additional P.G. Punjab

Through video link Lahore

Date of Hearing

15.01.2024.

Cr.P.Nos.528-L & 1068-L/ 2023

JUDGMENT

Cr.P. No.528 -L of 2023:

Syed Hasan Azhar Rizvi, J. Through this petition filed under

Article 185(3) of the Constitution of the Islamic Republic of

Pakistan, 1973, the petitioner/complainant, namely Shaukat

Ali, assails the order dated 05.05.2023 passed by the Lahore

High Court by which post arrest bail was granted to the

respondent, namely, Ali Ashraf.

2. Succinctly, facts of the case are that the

petitioner/complainant lodged an FIR No. 192 dated

10.01.2023 registered under Sections 302, 34, 324, PPC at

Police Station Chung, District Lahore on the allegations that

the respondent along with his co-accused while armed with

respective weapons in furtherance of their common object

assaulted on the complainant party on IO.Ol.2023 at 7:30

p.m. in the area of Gujranwala Chung Punjgrain within the

territorial jurisdiction of the above referred police station and

thereby caused firearm injuries to Danish Ali, nephew of the

petitioner, who later on succumbed to the injuries at the spot.

The motive behind the occurrence is that Danish Ali deceased,

the complainant and others used to forbid the accused persons

from selling narcotics in the vicinity and due to this grudge,

the accused persons with their mutual consultation committed

murder of Danish Ali.

The respondent applied for the post arrest bail before the

Additional Sessions Judge, Lahore which was declined uide

order dated 30.03.2023. Being aggrieved, the respondent

approached the Lahore High Court by filing Criminal

Miscellaneous No.22217-B of 2023 which was allowed uLde

order dated 05.05.2023 impugned herein.

3. Learned counsel for the petitioner/complainant

contends that the impugned order has been rendered without

touching the merits of the case; that the respondent/accused

has been nominated in the FIR with a specific role; that the

respondent is extending threats of dire consequences to the

petitioner; that the respondent is harassing the petitioner and

his witnesses not to pursue the case, thus misusing the

concession of bail; that the impugned order is against law and

facts; that the respondent has been declared guilty by the

investigating officer and that sufficient incriminating material

is available on the record to connect the respondent with the

commission of offence.

4 . Learned Law Officer while supporting the

contentions raised by the learned counsel for the petitioner

submits that the recovery of weapon of offence has been

affected from the respondent. Whereas, learned counsel for the

respondent has faithfully defended the impugned order and

submitted that the empties allegedly recovered from the

respondent did not match with the alleged weapon of offence.

We have heard the learned counsel for the parties

so also the learned Law Officer at a considerable length and

scmlned the material available on the record with their able

assistance .

6. It reflects from the record that the respondent has

been nominated in the FIR with a specific role and the recovery

of weapon used in commission of offence has been affected

from the respondent. The medical evidence fully supports the

stance taken by the prosecution.

The learned Judge of High Court solely on the basis

of an opinion of the Investigating Officer has passed the

impugned order and granted post arrest bail to the

respondent. The petitioner as well as Tariq Sadiq son of

Muhammad Sadiq, eye witnesses, have fully implicated the

respondent while deposing that the respondent with the intent

to kill Danish Ali has made straight firing upon him.

Furthermore, after registration of FIR, the investigation was

handed over to one Imran Haider, Inspector, who failed to

investigate the case fairly/impartially and became partisan

with the accused persons and gave his opinion regarding noninvolvement of the accused persons in the offence. It is evident

from the statement of the petitioner recorded under Section

200 Cr.P.C. before the Additional Sessions Judge Lahore

available on the record that the petitioner/complainant moved

an application dated 28.03.2023 to the D.I.G. (Investigation)

Lahore for the change of investigation. However, given the fact

that the accused persons are highly influential, Investigating

Officer was reluctant to collect necessary evidence, as a

consequence, complainant has lost the trust in the

investigation .

8. The complainant filed a private complaint before

the Judicial Magistrate, Lahore, which was, accordingly

forwarded to the Additional Sessions Judge Lahore vide order

dated 13.04.2023.

9. The learned Additional Sessions Judge Lahore IIttle

order dated 12.05.2023 found that sufficient incriminating

material is

available against all the accused including the

respondent. As regard the respondent being a highly influential

person WHO is extending threats of dire consequences to the

petitioner, we observe that it amounts to the misuse of

concession of bail, thus in the circumstances, the impugned

order cannot sustain. This Court has dealt with the

proposition qua cancellation of bail in the case reported as

Amir Faraz versus The State (2023 SCMR 308), relevant

extracts there-from are reproduced below for ease of

reference:

“6. ... ... ... ... ... ... ... No doubt,the opinion of the Investigating

OffIcer has some persuasive value, if the same is based upon

a strong and concrete material which is lacking in the present

case

8. It is settled that in criminal matters, each case has its

own peculiar facts and circumstances and the same has to be

decided on its own facts. In the present case, the petitioner is

specifIcally nominated in the FIR for causing fIrearm injury on

the head of the deceased and the said injury was spelt out

from the medical evidence. He was found involved in the

commission of offence in the fIrst investigation and the ipse

dixit of the second Investigating Officer, especially in the above

mentioned circumstances, had no persuasive value. Although

Cr.P.Nos.528-L & I068-L/2023

learned counsel for the respondent has relied upon certain

judgments and even the learned counsel for the petitioner has

also placed reliance on certain judgments qua opinion of the

Investigating OfFIcer but we observe that in all the said

judgments, the basic thing, which has to be considered by the

Court, is whether the said opinion is based upon cogent and

concrete material. In the absence of any material/data no

credit can be given to such ipse dixit of the Police OffIcer. If

the plea i.e. ipse diSt of the police,on the basis of which the

respondent has been released on bail is accepted, the same

would amount to discredit the version of the eye-witnesses

at this initial stage of the case which of course is not

permissible in the peculiar circumstances of the case. The

practice adopted by the learned High Court through the

impugned order is not appreciable. The High Court while

granting bait to the respondent has ignored the relevant

material indicating, prima-facie, involvement of the accused

in the commission of the crime and took into account

irrelevant material which had no nexus to the question of grant

of bail to the accused. It is settled law that bait granting order

could be cancelled if the same was perverse. An order which is,

inter alia, entirely against the weight of the evidence on record,

by ignoring material evidence on record indicating, prima facie,

involvement of the accused in the commission of crime, is

always considered as a perverse order, which is in present

case as nraterial evidence on the record brought by

prosecution promptly, was not given any weight by the High

Court and a perverse order was passed upon a baled opinion of

second Investigating O#icer.

11. ... ... ... ... .... ... ... Even otherwise, no hard and fast rule can

be laid down that bail should not be cancelled merely for the

reason that the trial has commenced or is likely to commence

because every case is to be examined in the light of its own

facts, and the crucial question that arises for determination

would be as to whether a person is entitled to grant of bail

under the provision of section 497, Cr.P.C. which, as

already observed, the respondent was not entitled to, especially,

when there is suffIcient material available against him in the

shape of ocular account as well as the medical evidence and the

circumstance that he along with other accused committed the

murder of his NO real brothers. The judgments relied upon by

the learned counsel for the respondent, to this eJect, having

diferent facts and circumstances, could not be applied in this

Cr.P.Nos.528-L & I068-L/ 2023

case

12. All the above mentioned circumstances have been

ignored by the High Court while granting bait to the

respondent, record to that extent has not been examined by

the High Court and same order can be considered as perverse,

because the material collected by the fIrst Investigating OffIcer,

on the day fIrst, was totally ignored by the High Court while

granting bait in such a double murder case.

10. For what has been discussed above, this petition is

converted into an appeal; allowed; the impugned order dated

05.05.2023 is set aside and the bail granted to the respondent

is hereby recalled/cancelled.

11. The above observations are tentative in nature and

will have no bearing upon subsequent proceedings during the

trial as the trial Court is required to decide the case on its own

merits without being influenced by any observation made in

this order.

Cr.P. No. 1068-L of 2023:

12. After arguing the matter at some length, learned

counsel for the petitioner opts to withdraw this petition.

Dismissed as having been withdrawn.

Islamabad the

1 5th January, 2024.

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