TANVEER HUSSAIN and others vs THE STATE
This matter concerns a petition for post-arrest bail filed by Tanveer Hussain, Munir Hussain, and Khurshid Ahmad, who were accused in a case registered under Section 392 of the Pakistan Penal Code 1860. The petitioners contended that the case was a fabrication born of police animosity following a habeas corpus petition filed against the police. The core legal question was whether the petitioners were entitled to bail given the delay in the commencement of the trial, the questionable identification parade, and the alleged mala fide intent of the police. The Court held that the petitioners were entitled to bail, noting that the accused had been incarcerated for 22 to 26 months without the trial having commenced. The Court emphasized that accused persons cannot be kept in jail indefinitely due to the prosecution's failure to proceed. It further observed that the identification parade was flawed as only the complainant was associated with the proceedings. Consequently, the Court granted bail, establishing that the right to an expeditious trial is a fundamental right of the accused that cannot be undermined by the prosecution's inaction.
- Whether an accused is entitled to bail when the trial has not commenced after a significant period of incarceration?
- Does the failure to join witnesses other than the complainant in an identification parade weaken the prosecution's case for the purpose of bail?
- Can the court grant bail when there is evidence of police hostility and mala fide intent against the accused?
- Section 392, Pakistan Penal Code 1860
ORDER
' Tanveer Hussain, Munir Hussain and Khurshid Ahmad petitioners, seek their post-arrest bail in crime Report No 225, dated 17-6-2001, under section 392, P.P.C. Registered at Police Station, Cantt, Gujranwala at the behest of one Nadeem Aziz Khan son of Abdul Aziz Khan. Four unknown and unidentified persons with the fake descriptions were mentioned in the F.I.R. The accused irrupted into house of the complainant on the night between 16/17-6-2001 and deprived the complainant of various articles on gun point. Tanveer Hussain and Munir Hussain petitioners were arrested by.
Police Station, Ghakkar on 25-11-2001 in connection with investigation of some other case. They were being wrongfully confined and illegally detained, so habeas petition was brought by Mst.
Fayyaz Bibi, sister Tanveer Hussain, petitioner. The bailiff deputed by the Court recovered and produced them before this Court on 9-1-2002. They were admitted to bail on 11-1-2002. It was much after that the petitioners could be arrested by the police in this case and some other cases.
2. Learned counsel for the petitioners painted overall picture of the case by stating that this case is outcome of avowed animosity between the petitioners and the police as police was ordered to be proceeded against in the habeas petition. A criminal case was also registered against the police.
Adds that entii.: :vidence in the instant case is a patent fabrication because the police possessed ignoble design of avenging their insult. Challan has already been put up before the trial Court on 1- 8-2002 and till now prosecution has not produced a single witness to substantiate allegation brought against the petitioners. According to learned counsel for the petitioners allegations require further probe in view of peculiar circumstances of the case.
3. Conversely, learned counsel for the State submits that petitioners ate involved in certain other cases and because of their chequered record, they are not entitled to grant of bail. While commenting upon identification parade in respect of Tanveer and Khurshid on 2-3-2002 and Munir on 4-10-2001 he admits that only the complainant was associated in the proceedings, whereas other witnesses were not joined. '
4. Having heard both the sides at some length I am of the view that undoubtedly the police was hostile against the petitioners. Munir is behind the bars for the last about 26 months, whereas Tanveer and Khurshid are lodged in jail for the last about 22 months but trial has not commenced so far. Accused persons cannot be kept interminably in jail on the whim or caprice of the prosecution. Expeditious disposal of criminal cases is right of the accused, which is being deprived by the prosecution. Trial in the instant case is likely to consume pretty long time. Keeping in view the future delay likely to occasion in conclusion of- trial, I am inclined to allow bail to the petitioners more especially when identification parade is not up to the mark and they are not previous convicts. Accordingly petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs.1,00,000 (one lac) each with two sureties each in the like amount to the satisfaction of trial Court.