KHADIM HUSSAIN FAROOQI vs THE STATE
This is a post-arrest bail application filed under Section 497 of the Code of Criminal Procedure 1898 in respect of offences under Sections 302, 392, 397, 109, 411, 148, and 149 of the Pakistan Penal Code 1860. The core legal question was whether the petitioner was entitled to bail where he was not named in the First Information Report, was linked to the crime only through statements of co-accused showing close connection, and had allegedly been an absconder for a long period. The Lahore High Court held that mere absconsion, even for a long period, cannot be taken as substantive evidence of guilt without solid corroborative evidence connecting the accused to the crime, and that the case called for further inquiry. The court laid down the principle that bail cannot be withheld merely as a punishment and that the prosecution must establish a prima facie case based on independent incriminating evidence beyond mere absconsion.
- Whether mere absconsion of an accused for a long period can be treated as substantive evidence of guilt to deny post-arrest bail?
- Can bail be withheld merely as a punishment where the prosecution lacks solid incriminating evidence?
- Does a statement under Section 161 of the Code of Criminal Procedure 1898 regarding a close connection with co-accused constitute sufficient prima facie evidence to connect an un-named accused with a crime?
- Section 497, Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 392, Pakistan Penal Code 1860
- Section 397, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 411, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
ORDER
' IJAZ AHMAD. CHAUDHRY, J.---Through this application under section 497, Cr.P.C. Khadim Hussain Farooqi, petitioner seeks post-arrest bail in a case F.I.R. No, 647 of 1997, dated 26-12-1997, registered under sections 302/392/397/109/411/148/149, P.P.C. At Police Station Iqbal Town, Lahore, on the statement of Muhammad Sarwar, the complainant.
2. The brief facts of the case are that three brothers of the complainant were in America, while the complainant, Akhtar Ali and Qaiser Mustafa were settled in Rachna Block along with their parentsand father of the complainant was dealing in money exchange business having his office in the basement of the house. In routine at 10-00 a.m. The complainant's brother, Qaiser used to leave their father in the office in a car at 4-30 p.m. Mistri Khalid came to their house and told the complainant that some occurrence had taken place in the office. The complainant along with his brothers Qaiser, Akhtar and Khalid went to 40-Rachna Block. The main gate was closed from inner side and when they went to basement, it was found that some dacoity had ken committed. The father of complainant was found dead and his arms and feet were tied with a chair and there were injuries on the back of head near right ear and nose. On checking certain material including cash duly detailed in the F.I.R. Was found to have been stolen.
3. The learned counsel for the petitioner has contended that except for the statements of Rafaqat and Ashraf under section 161, Cr.P.C. That the petitioner had close connection with the co-accused, who had abetted for the incident, there is no other evidence to connect the petitioner with the commission of crime; that the petitioner was employed in a factory of Garments at Lahore for the last 8/9 years as a Cutting Master and he was not aware of registration of this case; that non- arrest of the petitioner by the police for a long period does not mean that the petitioner had intentionally avoided to appear before the police and he was involved in the occurrence; that to the extent of the petitioner it is a case of no evidence, and that no useful purpose can be served by keeping the petitioner in jail, who may be allowed bail.
4. The learned Deputy Prosecutor-General for the State has opposed this bail petition on the ground that the petitioner remained fugitive from justice for about 9 years and he has lost the normal rights of audience, whose bail petition may be dismissed.
5. I have heard the arguments advanced by the learned counsel for the parties and perused the record with due care and caution.
6. The petitioner was not named in the F.I.R. And the only allegation against him is that the co- accused, who had abetted for the murder of the deceased, had close connection with the petitioner. During the investigation nothing was recovered from the petitioner and no incriminating evidence has been collected by the police to prima facie connect the petitioner with the commission of crime. It is claimed that the petitioner had been serving in a Factory of Garments at Lahore and he had no knowledge about his involvement in this case. There is nothing on the record that the petitioner had intentionally avoided to surrender before the police. Even otherwise the prosecution has to stand on its own legs and mere absconsion of the petitioner even for such a long period cannot be taken as a substantive piece of evidence to prime facie holdhim guilty unless the prosecution is equipped with some solid evidence towards the guilt of the accused and for his involvement in the occurrence. In such facts and circumstances, the petitioner has succeeded in making out a case of further inquiry and bail cannot be withheld merely as a punishment.
' For the foregoing reasons, the instant bail application is accepted and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs,1,00,000 with one surety in the like amount to the satisfaction of the learned trial Court. As it is an old case, the learned trial Court is directed to conclude the trial within two months from the receipt of this order even on day to day basis.