SHAMSUDDIN vs THE STATE
This matter arises from a bail application filed by the applicant Shamsuddin, facing trial under sections 302, 337-A(ii), 337-F(i), 147, 148, and 114 of the Pakistan Penal Code 1860, relating to an alleged family altercation resulting in injuries and a death. The core legal question concerns whether the applicant is entitled to post-arrest bail on grounds of statutory delay in the commencement of the trial and lack of murderous intention based on the specific role attributed. The Sindh High Court held that the applicant has made out a case for further inquiry due to the absence of a firearm discharge despite availability, the nature of the role attributed, and the prolonged incarceration exceeding three years without the charge being framed due to a vacant trial court. The court laid down the principle that undue delay in the commencement of trial coupled with circumstances rendering the intent to kill questionable warrants the grant of post-arrest bail.
- Does a delay of over three years in the commencement of a trial due to a vacant trial court justify the grant of post-arrest bail?
- Whether the attribution of a pistol butt blow instead of a gunshot brings the case within the scope of further inquiry under section 497(2) of the Code of Criminal Procedure?
- Can an accused person be denied bail when co-accused with similar or more active roles have already been granted bail?
- Section 302, Pakistan Penal Code 1860
- Section 337-A(ii), Pakistan Penal Code 1860
- Section 337-F(i), Pakistan Penal Code 1860
- Section 147, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 114, Pakistan Penal Code 1860
ORDER
' Applicant Shamsuddin is facing trial for an offence under sections 302, 337-A(ii), 337-F(i), 147 and 148, 114, P.P.C.
2. It is alleged that on 29-11-2000 at about 5-00 p.m. Complainant Usman Ghani was present in the house of applicant Shamuddin where they had gone to see complainant's daughter and grand- daughter. They saw Shamsuddin armed with pistol, Ali Khan with hatchet, Ali Murtaza, Ali Gohar and Ali Murad with Lathis and on the instigation of Mst. Zulekhan and Amina accused Ali Khan gave hatchet blows to complainant's daughter namely Mst. Khatoon which hit her on head. Accused Ali Murtaza inflicted Lathi blows to Mst. Zulekhan which hit her on her hand and other parts of the body.
Accused Shamasuddin gave butt blow to complainant's grand-daughter Mst. Amina while Ali Murad inflicted Lathi blows upon her on forehead and other parts of the body. The accused persons then disappeared from the scene. Mst. Amina was found in unconscious condition while Zulekhan and Khatoon were raising cries. Complainant lodged F.I.R. At Police Station Rustam on the same day. The applicant was arrested on 29-11-2000.
3. I have heard Mr. Jai Jai Veshno learned counsel for the applicant and Mr. Muhammad Ismail Bhutto learned State counsel and perused the relevant material.
4. The main ground advanced in support of bail plea is that for a period of over three years the applicant is in custody yet there are no prospects of trial to commence as the charge has still not been framed. On merits it was contended that basically the role assigned to the applicant is of instigation and thereafter only a butt blow is attributed to him. The other accused have been granted bail by this Court.
5. A report was called for from the trial Court. Learned inchargeAdditional Sessions Judge as in his report pointed out that the Court is lying vacant since 3-7-2003 and that no charge has been framed.
6. On merits the allegation against the applicant is that he gave a blow with the butt of the pistol and his son Ali Murad inflicted Lathi blows. On the face of it the above circumstances, would tend to show that apparently the intention to kill was lacking. This incident has taken place within family and in the house of the applicant who was allegedly armed with pistol yet nothing appears from record as to what prevented him from making a fire if the intention was to kill. On this score the case of applicant would call for further enquiry. There is delay in commencing with the trial which in the afore-mentioned circumstances cannot be overlooked.
7. For the foregoing reasons the application is allowed, the applicant be released on bail on furnishing surety in the sum of Rs.2,00,000 and P.R. Bond in the like amount to the satisfaction of the trial Coutt.