GHULAM MUJTABA JATOI vs THE STATE through Advocate-General Sindh, Karachi
This matter arises from a criminal petition for leave to appeal filed against the order of the High Court declining post-arrest bail to the petitioner in a case registered under sections 324, 379, 511, 147, 148 and 149 of the Pakistan Penal Code. The core legal question was whether the petitioner was entitled to post-arrest bail where the investigating agency found no cause for prosecution and submitted a report under section 173 of the Code of Criminal Procedure, but the Magistrate summoned witnesses behind the back of the accused and directed the submission of a charge-sheet. The Supreme Court converted the petition into an appeal and allowed it, setting aside the orders of the trial court and the High Court, and granted bail to the petitioner subject to furnishing solvent surety. The court held that the case tentatively required further inquiry given that the investigating agency found no prosecution case and witnesses were examined by the Magistrate in the absence of the accused after a considerable delay.
- Is an accused entitled to post-arrest bail when the investigating agency finds no cause for prosecution and submits a report under section 173 of the Code of Criminal Procedure?
- Does examining witnesses in the absence of the accused to summon a charge-sheet provide grounds for further inquiry under criminal jurisprudence?
- Section 324, Pakistan Penal Code 1860
- Section 379, Pakistan Penal Code 1860
- Section 511, Pakistan Penal Code 1860
- Section 147, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 173, Code of Criminal Procedure 1898
ORDER
' RANA BHAGWANDAS, J.--- Petitioner is aggrieved by the High Court's order dated 6-5-2004 passed in Criminal Bail Application No,S-161 of 2004 declining bail in a case registered under sections 324, 379, 511, 147, 148 and 149, P.P.C.
2. After investigation charge-sheet against the petitioner and co-accused was not submitted for want of adequate and reliable evidence. Instead a report under section 173, Cr.P.C. Was submitted before the trial Magistrate, however, being not satisfied with the police report chose to summon the complainant and the witnesses and after recording their statements in the absence of the accused-petitioner issued a direction for submission of charge-sheet against them. While all other co-accused have been released on bail, petitioner has been denied his right of freedom on the premise that specific role of using weapon was ascribed to him.
3. On perusal of the record we are tentatively of the view that case of the petitioner requires further inquiry, as Investigating Agency found no cause for prosecution against him. Even otherwise witnesses appear to have been examined by the Magistrate behind the back of the petitioner after about 1 month and 25 days.
4. Dr. Qazi Khalid Ali, learned Additional Advocate-General appearing on behalf of the State does not oppose the bail in view of the facts and circumstances of the case.
5. In the result, this petition is converted into appeal and allowed.Impugned orders of the trial Court and the High Court are set aside, and the petitioner is admitted to bail, subject to solvent surety in the sum of Rs,50,000 to the satisfaction of the trial Court.