ZAHID HUSSAIN vs THE STATE
This is a criminal petition filed by Zahid Hussain seeking post-arrest bail in case F.I.R. No. 200 dated 13-8-2005 registered under sections 302, 337-A(iii), 337-F(i)/34 of the Pakistan Penal Code at Police Station Chhab Kalan District Khanewal. The core legal question revolves around whether the petitioner is entitled to post-arrest bail in light of contradictions between the ocular account and medico-legal reports, his placement in column No. 2 of the challan as innocent, and the delay in concluding the trial beyond the stipulated timeframe. The Lahore High Court accepted the petition and held that clear-cut contradictions between the ocular version and medical evidence, coupled with the police finding of innocence and unwarranted delay in the conclusion of the trial attributable to the prosecution, bring the case within the scope of further inquiry under section 497(2) of the Code of Criminal Procedure 1898. The key principle laid down is that where material contradictions exist between ocular testimony and medical reports, and where trial delay causes prolonged unwarranted detention, the accused is entitled to the concession of post-arrest bail.
- Whether contradictions between ocular account and medico-legal reports make out a case for further inquiry warranting post-arrest bail?
- Does the finding of innocence by the police during investigation hold relevance at the bail stage?
- Whether prolonged unwarranted detention due to delay in concluding the trial entitles an accused to be released on bail?
- Section 302, Pakistan Penal Code
- Section 337-A(iii), Pakistan Penal Code
- Section 337-F(i), Pakistan Penal Code
- Section 34, Pakistan Penal Code
ORDER
' MUHAMMAD NAWAZ BHATTI, J.--- The petitioner seeks post-arrest bail in case F.I.R. No,200, dated 13-8-2005 registered under sections 302, 337-A(iii), 337-F(i)/34, P.P.C. At Police Station Chhab Kalan District Khanewal.
2. According to the F.I.R., the allegation against the petitioner is that he along with his three co- accused launched an attack upon Qasim Hussain complainant and his brothers namely, Mumtaz Hussain and Muhammad Akbar and he caused injury with his hatchet on the left hand of Mumtaz Hussain and gave second injury with his hatchet on the head of Muhammad Akbar, who later on succumbed to the injuries.
3. Learned counsel for the petitioner has contended that no recovery was effected from the petitioner; that there are contradictions in the ocular account and the Medico-legal Reports, benefit of which should be given to the petitioner at bail stage and in this behalf reliance is placed upon Syed Abdul Baqi Shah v. The State 1997 SCM R 32; that during investigation prosecution could not produce any evidence to connect the petitioner with the offence, therefore, he was declared innocent by the police which makes case of the petitioner that of further enquiry and that although more than three months have passed since the withdrawal of the application of the petitioner for bail on the basis of the direction to the trial Court to conclude the trial within two months, yet the trial has not been concluded and as such the petitioner is entitled to be released on bail.
4. On the other hand, learned counsel for the State has vehemently opposed the bail application and submitted that the trial is in progress.
5. Arguments heard. Record perused.
6. No recovery was effected from the petitioner. The petitioner was attributed hatchet blows to the deceased as well as to the injured, however, according to Medico-legal Reports none of them received any sharp-edged injury, so there are clear-cut contradictions in the ocular account and the Medico-legal Reports, as such the petitioner is entitled to be released on bail. Reliance in this behalf is placed upon Syed Abdul Baqi Shah v. The State 1997 SCM R 32. The petitioner was found innocent during the investigation and has been placed in Column No,2 of the challan. Although finding of police is not binding on the Court, yet the same is relevant at bail stage especially when the finding is with regard to innocence of accused. Reliance is placed on Bashir Ahmad v. State 2005 PCr.LJ 967. Earlier the petitioner had applied for bail by filing an application (Criminal Miscellaneous No,238/B of 2006), which was dismissed as withdrawn vide order, dated 27-2-2006 passed by this Court. However, the trial Court was directed to conclude the trial within two months from the date of receipt of the said order. More than three months have passed but trial has not been concluded. Therefore, I am of the view that this delay is on account of mala fide on the part of the prosecution. If the police or the complainant indulges in delaying tactics or frustrates the powers of the Court to proceed with the matter, it would be the duty of the Court to come to the rescue of an accused person and save him from the prolonged unwarranted detention. Reliance in this behalf is placed upon Fida Hussain alias Shamla, v. The State 1982 PCr.LJ 1201.
7. In view of the above circumstances, I find that the petitioner has been able to make out a case of further enquiry, therefore, he is admitted to bail subject to his furnishing bail bonds in the sum of Rs,1,00,000 (Rupees one lac) with two sureties each in the like amount to the satisfaction of the trial Court.