MUHAMMAD SIDDIQUE vs THE STATE
This matter concerns an application for confirmation of pre-arrest bail in a case involving an alleged murder under Section 302/34 of the Pakistan Penal Code 1860. The core legal question was whether the applicant was entitled to pre-arrest bail given the absence of direct evidence and the existence of admitted enmity between the parties. The Court held that the applicant was entitled to confirmation of bail, noting that the First Information Report was based on mere suspicion arising from a land dispute. The Court observed that there was no ocular evidence, no incriminating material connecting the applicant to the crime, and that the applicant had not abused the concession of interim bail granted ten months prior. The Court affirmed the principle that pre-arrest bail is appropriate where the prosecution's case rests on suspicion, where there is an absence of incriminating evidence, and where the arrest appears to be motivated by mala fide intentions to cause humiliation and harassment to the accused, rather than legitimate investigative necessity.
- Is pre-arrest bail maintainable when an FIR is based solely on suspicion and admitted enmity?
- Does the absence of incriminating evidence against an accused justify the confirmation of pre-arrest bail?
- Can the potential for police harassment and humiliation at the instance of a complainant constitute grounds for granting pre-arrest bail?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 154, Code of Criminal Procedure 1898
ORDER
1. The applicant is involved in a case under section 302/34, P.P.C. arising out of F.I.R. No,39 of 2002 of Police Station Gadap Town.
2. Briefly stated the facts of the case are that Gadap Police received telephonic information from one Muhammad Sajid that one. Muhammad Yousaf has been murdered near their lands. The police be sent for inquiry. The police made such entry in Roznamcha and proceeded to the place of incident and recorded the statement of Muhammad Younous which was later on incorporated in 154, Cr.P.C. book.
3. It is stated in the report that he was a guard in a Government School. On 13-4-2002, his elder brother Muhammad Yousuf went for a round on his agricultural land who did not turn uptill late night. The complainant went to the house of in-laws of Muhammad Yousuf but the latter was not available there. It is further disclosed in the F.I.R. that they had dispute over a landed property with their uncle Siddiq and some Pathans working on that land. He went to the lands of his uncle and reached at the room constructed on rock where he found certain blood-stained clothes lying there.
4. He broke open the window and saw that the dead body of his brother was lying in a room. He came back to his village and narrated the aforesaid facts to his relatives. He alongwith his maternal uncle Muhammad Sajid went to police station and lodged the report wherein he disclosed his suspicion towards his uncle Siddiq and Manan Pathan, Nasir Pathan, Sikandar Gabol and some unknown Pathans.
5. After registration of F.I.R. the police took up investigation.
6. Applicant Muhammad Siddiq applied for his pre-arrest bail in the Court of Sessions Judge, Malir, Karachi which was refused to him vide order dated 7th May, 2002.
7. He filed pre-arrest bail application and this Court vide order dated 13-6-2002 granted him interim pre-arrest bail which was fixed for confirmation.
8. I have heard Mr. Khawaja Sharful Islam learned counsel for applicant, Mr. Mazhar Ali B. Chohan learned counsel for complainant and Mr. Habibur Rashid learned counsel appearing for State.
9. It is argued by learned counsel for applicant that there is no eye-witness of the incident. The enmity of complainant party with the accused is admitted in the F.I.R. ' The dead body was recovered from a room built on mountain which did not belong to the accused. He states that the complainant in collusion with police started causing undue harassment, therefore, he applied for pre-arrest bail. It is submitted that his arrest would be mala fide and the police would cause unnecessary humiliation to him at the instance of complainant. The police has not collected any piece of evidence which could connect applicant with the commission of this crime. He is on interim bail for the last about 10 months and has not abused the concession of pre-arrest bail extended to him.
10. Mr. Habibur Rashid learned counsel .appearing for State has conceded to the confirmation of bail on the ground that the name of applicant has been given in F.I.R. due to suspicion and enmity between the parties is admitted.
11. Mr. Mazhar Ali B. Chohan learned counsel for complainant has vehemently opposed the confirmation of bail on the ground that investigation will be hampered and police would not be able to collect the evidence against the applicant. He states that there was no mala fide on the part of the complainant or police, therefore, application for pre-arrest bail was not maintainable.
12. The reliance is placed upon the cases of Murad Khan v. Fazal-e-Subhan and another PLD 1983 SC 82, Government of Sindh through The Chief Secretary and others v. Khalil Ahmed and others 1994 SCM R 782 and Tariq Perwaiz v. The State 1988 SCM R 28.
13. From the perusal of record it appears that the name of present applicant has been given in the F.I.R. by the complainant due to suspicion. Admittedly the complainant had. a dispute with accused over landed property. The dead body of deceased was found in an abandoned room constructed on a mountain. No ocular evidence is available in this case. Similarly not a slightest piece of evidence is appearing against the accused. He is on interim pre-arrest bail granted by this Court for the last about 10 months. The apprehension that police in connivance with complainant party would cause mental torture and humiliation to him has force in it. The record further reveals that some Pathans were living on that land wherefrom the dead body was recovered. At present no evidence is available against the accused to connect him with this crime.
14. The case-law cited at the bar has no relevance to the facts and circumstances of instant case. The arrest of the appellant apparently would be mala fide as not a single incriminating piece of evidence against appellant is available on record.
15. Under such circumstances, the interim bail granted to the applicant earlier by this Court was confirmed by a short order dated 15-4-2002 and these are the reasons for the same.