PATHAN vs THE STATE
This matter involves a criminal bail application filed by the applicant Pathan before the Sindh High Court seeking post-arrest bail in a case registered under sections 302 and 34 of the Pakistan Penal Code 1860 at Police Station Ghouspur. The core legal question was whether the applicant was entitled to post-arrest bail given that specific fatal injuries were not attributed to him and the background of an old land dispute. The court held that the applicant made out a case for bail because the cause of death was attributed to head injuries which were not assigned to the applicant, and the Assistant Advocate-General conceded to the grant of bail on similar grounds. The court laid down the principle that where fatal injuries are not attributed to a specific accused in a case stemming from an ongoing background dispute, and co-accused have been let off or the state concedes, further inquiry into the applicant's guilt under Section 497(2) of the Code of Criminal Procedure 1898 is warranted, justifying the grant of bail.
- Whether post-arrest bail should be granted when fatal head injuries are not attributed to the applicant?
- Does an old land dispute between parties create a case for further inquiry regarding criminal liability?
- Can bail be conceded by the State when specific roles assigned to an accused do not match the cause of death?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
' MUHAMMAD AFZAL SOOMRO, J.---Through this application learned counsel for the applicant Pathan has approached this Court for bail in a case bearing Crime F.I.R. No.91 of 2004 registered at Police Station, Ghouspur for an offence punishable under sections 302 and 34, P.P.C. The bail plea of the applicant was declined by the learned Additional Sessions Judge, Kandhkot vide order dated 14-2-2005.
' The prosecution story as unfolded in the F.I.R. Is reproduced hereunder: "The complaint is that, old dispute between us and Muhammad Murad Nindwani is going on, on the matter of land. Today, I, together with my brother Muhammad Sallah and cousins Khadim Hussain son of Tillan alias Muhammad Panah and Liaquat Ali s/o Arbab Ali Nindwani came from our village towards Ghouspur town with some work, when at 12-00 hours we reached at Datsun stand on link road leading towards Tangwani, in the meantime accused Muhammad Murad with Kalashnikov, 2.
Godho with gun both sons of Bilawal,
3. Bilawal son of Muhammad Murad with Kalashnike-,
4. Dost Ali,
5. Muhammad Malook,
6. Gul Khan all three sons of Moledino having hatchets in their hands disboarded from Datsun whose number is not remembered and accused 7. Mushtaque son of Muhammad Malook with gun, 8 Bhooro,
9. Shahmir both sons of Mirza,
10. Pathan son of Moledino and two unidentified persons whose faces were unveiled and I do not know their names. They came on three motorcycles, as such on coming accused Muhammad Murad Nindwani instigated rest of accused to commit murder of Muhammad Sallah as the land belong to us. On his instigation, accused Dost Ali caused hatchet blow and accused Bhooro caused lathi blow to Muhammad Sallah which hit him on his head with intention to commit his murder and accused Pathan and Shahmir started causing lathi injuries as such he fell down on the ground. Accused Musthaq and Godho started causing gun butt blows to him which hit at his left side of abdomen/iliac region. We being empty handed and due to fear did not go near them. Thereafter we and the people of town entreated the accused persons and rescued. Then all the accused along with weapons while boarding on same Datsun and Motorcycles went away towards their houses. Then we saw that my brother Muhammad Sallah sustained grievous injuries on his head and was bleeding and having injuries on back and iliac region having red marks and then by arranging conveyance and leaving injured Muhammad Sallah being serious at R.H.C., Ghouspur for immediate treatment, now I have come to report that above accused persons with their common object while making an unlawful assembly due to dispute over lands, on the instigation of accused Muhammad Murad, have caused grievous injuries with hatchet and lathis with intention to commit murder. I am complainant, investigation may be made."
' The investigation followed and in due course the applicant was sent up to stand trial in the Court of law.
' It has been contended by the learned counsel for the applicant that the case against him is false who has been involved in the background of enmity and suspicion. It has also been contended that dispute between the parties over landed property has been admitted by the complainant himself in the F.I.R. Hence in the background of old enmity and grudge the false implication of the applicant cannot be ruled out. It has further been contended that according to post-mortem notes of deceased the cause of death has been disclosed as due to head injuries that has not been assigned to the present applicant. It has further been added by the learned counsel that six co- accused have been let off by the police during investigation and their names have been placed in Column Noll of the challan sheet though they have been assigned active role in the commission of the offence.
Mr. Musthaque Ahmed learned Asstt. A.-G. Concedes to the grant of bail on the ground that the cause of death of deceased has been disclosed due to 'head injuries' and that has not been attributed to the present applicant.
' For what has been discussed above, I am of the considered opinion that learned counsel for the applicant has been able to make out a case for bail and consequently applicant Pathan Nindwani is granted bail provided he furnishes solvent surety in the sum of Rs.2,00,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.
' Criminal Bail Application No.S-135 of 2005 stands disposed of.