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IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE MAQBOOL BAQAR
MR. JUSTICE SA Y Y ED MAZAHAR ALl AKBAR NA QVI
CRIMINAL PETITION NO. 852 OF 2021
(Against the order dated 17.06.2021 of the
Lahore High Court, Rawalpindi Bench,
Rawalpindi passed in Cr.M.No. 1 127-B12021)
Chaudhry Nadeem Sultan
VERSUS
.Petitioner(s)
The State through P. G. Punjab and another 
.Respondent(s)
For the Petitioner(s): 
Mr. Muhammad Ramzan Chaudhry, Sr. ASC
For the State: 
Mr. Abid Majeed, DPG
Mr. Athar Ismail, CPO
Syed Ghazanfar Shah, SSP
Ms. Shazia, DSP
Mr. Sikandar, LO.
Mr. Mukhtar, Ex-1.0.
For the Complainant: 
Malik Waheed Anjum, ASC
Date of Hearing: 12.11.2 02 1
ORDER
SAYYED MAZAHAR ALl AKBAR NA (WI, 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 17.06.2021
passed by the learned Single Judge of the Lahore High Court,
Rawalpindi Bench, Rawalpindi, with a prayer to grant post-arrest bail in
case registered vide FIR No. 38512021 dated 11. 03.2021 under Sections
302132414491109134 PPC at Police Station Saddar Berooni,
Rawalpindi in the interest of safe administration of criminal justice.
2. Briefly stated the allegation against the petitioner is that he
along with co-accused while armed with rifle fired on different parts of
the deceased whereas the fires made by his co-accused with pistol
landed on the chest and belly of the deceased due to previous enmity.
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CRIMINAL PETITION NO.852 OF 2021 
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3.
At the very outset, it has been argued by the learned
counsel for the petitioner that the petitioner has been falsely roped in
this case against the actual facts and circumstances. Contends that
though the petitioner is ascribed the direct role of causing fire-arm
injuries but during the course of investigation he was found innocent
and his name was placed in Column No.2 of the report under Section
173 Cr.P.C. Contends that the prosecution has not challenged the
opinion of the police and as such it has attained finality. Therefore, the
petitioner is entitled to the concession of bail as the case of the petitioner
squarely falls under section 497(2) Cr.P.C.
4.
On the other hand, the learned Law Officer, assisted by the
learned counsel for the complainant, has vehemently argued that though
the petitioner has not been challaned by the Investigating Officer, still
there is ample material available on the record to connect the petitioner
with the alleged accusation. Contends that the plea of alibi taken by the
petitioner is artificial and that it can be procured easily. Contends that
the affidavits furnished by 18 persons have no value as the same are
customary in nature. Lastly, contends that inter-se distance between the
place of occurrence and the place where the petitioner claims presence
at the time of occurrence is hardly 20 kilometers which can be covered
within 10-15 minutes through motorcycle. Hence he is not entitled for
the concession of bail.
5.
We have heard the learned counsel for the parties and
perused the available record.
There is no denial to this fact that the occurrence has taken
place on 11. 03.2021 at 2:20 p.m., whereas the matter was reported to
the police at 7:40 p.m. Admittedly there is delay of more than 05 hours
in lodging of the FIR for which no explanation has been rendered by the
prosecution. Whereas the inter-se distance between the place of
occurrence and the Police Station is 06 kilometers. Both these aspects of
the case are connected inter-se which requires determination as per
dictates of justice especially when there is strong motive alleged by the
prosecution. The petitioner is ascribed direct role of causing fire-arm
injury to the deceased, however, the petitioner pleaded plea of alibi and
during the course of investigation the same was found to be correct and
as such the name of the petitioner was placed in column No.2 of the
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CRIMINAL PETITION NO. 852 OF 2021
report submitted under Section 173 Cr.P.G. as no recovery has been
affected from the petitioner during the course of investigation. Now the
question which requires determination is whether the case of the
petitioner is frilly covered by the dictum of further inquiry as envisaged
under Section 497(2) Cr.P.G. Perusal of the opinion given by the
Investigating Officer is based upon the GDR of the cell phone of the
petitioner which shows his presence away from the place of occurrence.
We had summoned the GPO and the Investigating Officer vide order
dated 10.11.2021 for a limited purpose to know whether the opinion
given by the Investigating Officer was solely based upon GDR and it can
be made basis to declare any person innocent in a case of heinous
nature. The GPO, present in Court, has stated that about 100 persons
appeared before the investigating Officer amongst those 18 persons
furnished their duly verified affidavits, that at the time of occurrence the
petitioner was present in chehlum of a co-villager and even the son of
deceased had furnished affidavit in this regard wherein it is specifically
stated that at the time of occurrence the petitioner was present over
there. The CDR was taken into consideration only to verify the contents
Of the affidavits and oral statements of the persons who have appeared
in defence of the petitioner before the Investigating Officer. We have
gone through the law on the subject and found that the definition of an
accused person is not provided anywhere in Cr.P.G., rather it was this
Court, for the first time in a salutary judgment reported as
F. B.
A.  and another Vs. The State (PLD 1975 SC 506) defined the word
"accused person". The same is reproduced as under:-
"in my view the mere lodging of an information
does not make a person an accused nor does a
person against whom an investigation is being
conducted by the police can strictly be called an
accused. Such person may or may not be sent
UP for trial. The information may be found to be
false. An accused is, therefore, a person charged
in a trial. The Oxford English Dictionary defines
an aaccused o as a person "charged with a
crime" and an"accusation" as an "indictment'.
Aiyer in his Manual on Law Terms also gives the
same meaning. I am of the view, therefore, that
a person becomes an accused only when
charged with an offence."
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CRIMINAL PETITION NO. 852 OF 2021 
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Perusal of the above definition clearly reflects that any person against
whom an accusation is made cannot be dubbed as an accused unless
and until he is found involved by the Investigating Officer and in this
regard a specific order for his arrest is made by him. All these
ingredients are missing, therefore, as far as the status of the petitioner
is concerned, he cannot be termed as an accused person. However, we
have been informed that the report under Section 173 Cr.P.C. has been
submitted before the Trial Court and the Court has taken cognizance
while summoning accused person which clearly reflects that the
summon has been issued for furnishing bail bonds which is in
accordance to the procedure laid down under Sections 911204 Cr.P.C.
Therefore, the case of the petitioner squarely falls within the ambit of
Section 497(2) Cr.P. C. calling for flirt her 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 dated
17.06.2021. The petitioner is admitted to bail subject to his furnishing
bail bonds in the sum of Rs.500,0001- with one surety in the like
amount to the satisfaction of learned Trial Court.
7.
Before parting with the order, we have been informed that
co-accused of the petitioner are still at large, therefore, the CPO is
directed to adopt all possible measures for bringing the culprits before
the law strictly in accordance with law. He is further directed to furnish
fortnightly progress reports in this regard for our perusal in Chambers.
Islamabad, the
12th November, 2021
Approved For Reporting
Waqas Naseer/
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