IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE YAHYA AFRIDI
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI
MR. JUSTICE MUHAMMAD ALI MAZHAR
CRIMINAL PETITION NO. 317-L OF 2023
(On appeal against the order dated 14.02.2023
passed by the Lahore High Court, Lahore in Crl. Misc.
No. 48864-B/2022)
Naveed Sattar … Petitioner
Versus
The State etc … Respondents
For the Petitioner: Mr. Humayoun Rashid, ASC
(Through video link from Lahore)
For the State: Mr. Irfan Zia, DPG
M/s. Wahid and Iqbal, SI
For the Complainant: In person
Date of Hearing: 20.09.2023
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition
under Article 185(3) of the Constitution of Islamic Republic of Pakistan,
1973, the petitioner has assailed the order dated 14.02.2023 passed by
the learned Single Judge of the learned Lahore High Court, Lahore, with a
prayer to grant post-arrest bail in case registered vide FIR No. 406/2021
dated 17.07.2021 under Sections 302/34/118/120-B/109/506 PPC at
Police Station B-Division, District Kasur, in the interest of safe
administration of criminal justice.
2. Briefly stated the prosecution story as narrated in the crime
report is that in the night of 17.07.2021, three unknown persons entered
in the house of the complainant and murdered her son by making fires on
his right leg below the abdomen. On the same day, the complainant got
lodged the FIR against the unknown persons. On 25.08.2021, 30.10.2021
and 15.11.2021, the complainant got recorded her supplementary
statements under Section 164 Cr.P.C. wherein she did not nominate the
Criminal Petition No. 317-L/2023 2
petitioner as an accused. However, subsequently she recorded yet another
statement on 22.11.2021 wherein she nominated the present petitioner
for the first time. The petitioner was arrested on 27.11.2021 whereafter
he applied for post-arrest bail before the learned Trial Court as also before
the learned High Court but could not get the relief sought for. Hence, this
petition.
3. At the very outset, it has been argued by learned counsel for
the petitioner that the petitioner has been falsely roped in this case
against the actual facts and circumstances. Contends that the allegations
leveled against the petitioner are false, frivolous, baseless, concocted and
the prosecution story is not worthy of credit. Contends that the
complainant nominated the petitioner in her fourth supplementary
statement after a period of four months, which shows her mala fides.
Contends that the photographs allegedly connecting the petitioner with
the commission of the crime were never sent for forensic examination,
therefore, they cannot be relied upon to determine the guilt of the
petitioner. Lastly contends that the learned High Court while declining bail
to the petitioner has not followed the guidelines issued by this Court for
the safe administration of criminal justice, therefore, the same may be set
at naught and the petitioner may be released on bail.
4. On the other hand, learned Law Officer assisted by the
complainant in person opposed the petition by contending that the
petitioner has specifically been nominated by the complainant while
recording her supplementary statement and he was found involved during
police investigation, therefore, he does not deserve any leniency from this
Court.
5. We have heard learned counsel for the parties at some
length and have perused the available record with their able assistance.
As per the contents of the crime report, on 17.07.2021 at
02:50 AM (night), three unknown persons entered in the house of the
complainant and murdered her son by making fires on his right leg below
Criminal Petition No. 317-L/2023 3
the abdomen. On the same day, the complainant got registered the FIR
against the unknown persons. We have noted that subsequently the
complainant got recorded three supplementary statements on
25.08.2021, 30.10.2021 and 15.11.2021 wherein she did not nominate the
petitioner as an accused. However, on 22.11.2021 she recorded another
statement after the lapse of more than four months wherein she
nominated the present petitioner for the first time. A bare look of the
crime report and the subsequent four supplementary statements got
recorded by the complainant shows that the complainant remained
changing her stance. The identification parade was conducted after
petitioner’s nomination by the complainant and in such circumstances,
prima facie the sanctity of such test identification parade is open for
determination. So far as the Call Data Record (CDR) is concerned, this
Court in a number of cases has held that in absence of any concrete
material the CDR is not a conclusive piece of evidence to ascertain the
guilt or otherwise of an accused. Similarly, there is nothing on record to
show that the photographs allegedly connecting the petitioner with the
commission of the crime were ever sent for forensic examination,
therefore, in view of the law laid down by this Court in Ishtiaq Ahmed
Mirza Vs. Federation of Pakistan (PLD 2019 SC 675) it is unsafe to rely upon
the same as a piece of evidence in a court of law. It appears there is no
direct evidence against the petitioner and the prosecution case hinges
upon the circumstantial evidence. The fundamental principle of universal
application in cases dependent on circumstantial evidence is that in order
to justify the inference of guilt of an accused, the incriminating fact must
be incompatible with the innocence of the accused and incapable of
explanation upon any other reasonable hypothesis than that of his guilt.
The cumulative effect of all these aspects creates a doubt in the
genuineness of prosecution version. It is settled principle of law that
benefit of doubt can be even extended at bail stage. Reliance is placed on
Muhammad Ejaz Vs. The State (2022 SCMR 1271), Muhammad Arshad Vs.
The State (2022 SCMR 1555) & Fahad Hussain Vs. The State (2023 SCMR
364). Although the petitioner was found involved during Police
Criminal Petition No. 317-L/2023 4
investigation but it is settled law that ipsi dixit of the Police regarding the
guilt or innocence of an accused could not be depended upon as the same
would be determined by Trial Court on the basis of evidence available on
record. The petitioner is behind the bars for the last more than 20 months.
This court in a number of cases has held that liberty of a person is a
precious right, which has been guaranteed under the Constitution of
Islamic Republic of Pakistan, 1973, and the same cannot be taken away
merely on bald and vague allegations. Taking into consideration all the
facts and circumstances stated above, we are of the view that the case of
the petitioner squarely falls within the ambit of Section 497(2) Cr.P.C.
entitling for further inquiry into his guilt.
6. For what has been discussed above, we convert this petition
into appeal, allow it and set aside the impugned order. The petitioner is
admitted to bail subject to his furnishing bail bonds in the sum of
Rs.200,000/- with one surety in the like amount to the satisfaction of
learned Trial Court. Before parting with the order, we may observe that
the observations made in this order are tentative in nature and would not
prejudice the proceedings before the Trial Court.
JUDGE
JUDGE
JUDGE
Islamabad, the
20th of September, 2023
Approved For Reporting
Khurram
