ZAFAR IQBAL vs THE STATE
This bail application arose from a criminal case involving allegations of abduction, physical assault, and robbery under sections 395 and 337 of the Pakistan Penal Code 1860. The applicant, having previously been denied bail by the High Court—a decision upheld by the Supreme Court—sought post-arrest bail on the grounds of a compromise between the parties and affidavits from prosecution witnesses exonerating the accused. The core legal question was whether bail could be granted in a non-compoundable offence when the complainant and eyewitnesses have resiled from their previous statements and entered into a compromise. The Court held that while the offence itself is not compoundable, the fact that the complainant and eyewitnesses have filed affidavits exonerating the accused renders the applicant's ultimate conviction doubtful. Consequently, the Court granted bail, establishing the principle that where prosecution witnesses resile from their statements, thereby creating doubt regarding the likelihood of conviction, the accused is entitled to the concession of bail, even in non-compoundable offences.
- Can bail be granted in a non-compoundable offence if the complainant and eyewitnesses have entered into a compromise with the accused?
- Does the filing of affidavits by prosecution witnesses exonerating the accused constitute sufficient grounds to grant bail in a non-compoundable case?
- Is an accused entitled to bail when the prosecution witnesses have resiled from their earlier statements, making the ultimate conviction doubtful?
- Section 395, Pakistan Penal Code 1860
- Section 337, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
ORDER
The brief facts of the matter per F.I.R No,23 of 2003 lodged at P.S. Ibrahim Hydri on 13-3-2003 are that on the same date at 0050 hours the complainant, who was available at his house received a call on his mobile phone from one Abdul Jabbar who asked him to come outside as he had to talk to the Complainant about some plot. The Complainant upon emerging from his house saw that a golden coloured car was standing outside from which accused namely Zafar Iqbal, Aurangzeb, Ch. Rafique, Iftikhar and Hussain emerged duly armed. They caught the complainant and took him away and gave him a beating as a result of which his right leg was broken, his left leg was fractured and he also received internal injuries on both his arms and other parts of his body. They also snatched Rs,1,30,000 from the Complainant as well as his mobile phone and threatened to kill him. As he had become unconscious his brother Mehmood Zakir took him to Jinnah Hospital for medical treatment and thereafter he went home when the report was filed.
2. Earlier Criminal Bail Application No,610 of 2003 filed by the applicant before this Court was dismissed by myself on merits whereafter the applicant again filed another bail application before the learned trial Court on the ground that all the three private prosecution witnesses have completely exonerated the accused/applicant and so also the Complainant Nasir Mehmood had given an affidavit that the matter had been compromised between himself and the Accused.
However, the said bail application was dismissed by the learned trial Court vide order dated 20-12- 2003 and hence the present bail application.
3. Learned counsel for the applicant has only urged one ground for the grant of bail viz. That all fhe eye-witnesses have exonerated the applicant vide affidavits attached with this application and so also per the affidavit of the complainant the matter has been patched up between the Parties.
Learned counsel submits further that even though the offence viz. Under sections 395/337 P.P.0 is not compoundable bail can be considered for which proposition he has cited Mukhtar Ahmed v.
The State (1999 PCr.LJ 1106), Muhammad Akram v. The State (1995 M LD 1826), Mst. Elahi alias Bibi v.
The State (1997 PCr.LJ 1193) and Ghulam Ali v. The State (1997 SCM R 1411).
4. Mr. Arshad Lodhi, learned A.A.-G., has stated that in view of the compromise between the Parties and the affidavits filed by the eyewitnesses he would have no objection to, the grant of this application. Mr. Attique Ahmed Siddiqui for the Complainant has also not opposed this bail application.
5. I have heard both the learned counsel as well as the learned A.A.-G. It would be seen that earlier the applicants bail was rejected by myself on the ground that prima facie sufficient evidence was available to connect him to the crime in question which finding was upheld by the Hon'ble Supreme Court in Criminal Petition No,74-K of 2003. However, now it appears that the prosecution witnesses including the Mashirs of recovery have resiled from such Mashirnamas as well as their 161, Cr.P.C. Statements per their affidavits attached to this application. Hence in the circumstances of the case ultimate conviction of the applicant has become doubtful. Consequently at this stage, the applicant is entitled to bail. Above are the reasons for the short order passed on 27-1-2004 whereby bail was granted to the applicant.
Cited by 3 cases
- BADSHAH vs THE STATE 2011 MLD 594
- GUL SHER vs THE STATE 2008 MLD 847
- KATTO BROHI vs THE STATE 2006 YLR 1694