MEHBOOB HUSSAIN and another vs THE STATE
This is a criminal petition seeking post-arrest bail in a case registered under Section 302/34 of the Pakistan Penal Code 1860. The petitioners were specifically named in the F.I.R. for inflicting fatal sickle blows to the deceased and causing injuries to an injured prosecution witness. The core legal questions involved whether the petitioners were entitled to bail on the grounds of a counter-version, police opinion favouring the accused, and delay in the conclusion of the trial. The Lahore High Court held that the petitioners were nominated in the F.I.R. with specific attribution of fatal injuries, that police opinion is not binding on courts, that the plea of a counter-version cannot be considered at the bail stage when the trial is near completion, and that delay caused by the petitioners' own prolonged abscondence and the consequent de novo trial disentitles them to statutory bail. The petition was accordingly dismissed with a direction to the trial court to conclude the trial expeditiously.
- Whether the plea of a counter-version can be considered at the bail stage when the trial is nearing completion?
- Does police opinion during investigation bind the courts in deciding a post-arrest bail petition?
- Can an accused who remained a fugitive from law for a prolonged period claim the benefit of delay in trial for the grant of bail?
- Are petitioners specifically named in the F.I.R. with active roles in a murder case entitled to post-arrest bail?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
- Section 512, Code of Criminal Procedure 1898
ORDER
HASNAT AHMAD KHAN, J.--- Mehboob Hussain and Mulazim Hussain petitioners have sought post- arrest bail in case F.I.R. No.95 dated 29-3-2003 under section 302/34, P.P.C. Registered with Police Station Kot Chutta Dera Ghazi Khan.
2. Brief facts of the case, which had been registered at the instance of the complainant, are that on 29-3-2003 at about 2.p.m. Complainant, Faiz Karim (deceased) and Riaz Ahmad (injured P.W.) were going to their village. In the meanwhile they were intercepted by the petitioners and two others. Bahawal co- accused caused an injury on the head of Riaz Ahmad, injured P.W. With his stick while Mulazim Hussain petitioner caused injury on the belly of Riaz Ahmad, injured P.W. With sickle; Mehboob Hussain petitioner allegedly caused a sickle blow to Faiz Karim (deceased) which landed on his belly. Then Mulazim Hussain petitioner caused three successive blows with sickle on the back of.
Faiz Karim (deceased). Thereafter Bahawal co-accused caused an injury with a sickle on the head of he injured P.W. After the occurrence was over an effort was made to transport Faiz Karim to the Hospital but he succumbed to the injuries on the way to the hospital. Motivating factor behind the occurrence was dispute between the parties over the land. Matter was reported to the police within four hours of the occurrence. After the dismissal of the application for post-arrest bail by the learned trial Court the petitioners have approached this Court for said relief.
3. In support of this petition learned counsel for the petitioner has submitted that it is a case of counter version; that it was in fact the complainant party who was aggressor; that a counter version under sections 324/109/34, P.P.C. Had also been recorded at the instance of accused party; that during the same occurrence Mulazim Hussain petitioner had received fire-arm injuries and during the investigation it was found that in fact it was the complainant party who was aggressor.
On the dint of said submissions the learned counsel for the petitioners has submitted that case of further inquiry has been made out in favour of the petitioners entitling them to the grant of post- arrest bail. Lastly it has been contended that the petitioners are entitled to bail on the ground of delay in trial as they are behind the bars since the registration of case yet the trial has not been concluded so far.
4. On the other hand learned counsel for the complainant has submitted that the petitioners are named in the F.I.R.; that they are responsible for causing death of Faiz Karim (deceased) and causing serious injuries to Riaz, injured P.W.; that Mehboob Hussain petitioner and Qasim co- accused remained absconders for a pretty long period and that they could not be arrested before 14-11-2005; that the complainant is not responsible for delay in the trial which got delayed due to the start of de novo trial which was resulted as a consequence of the arrest of proclaimed offenders i.e. Mehboob petitioner and Qasim co-accused. Lastly it has been contended by him that after the start of de novo trial seven prosecution witnesses have already been examined and trial is about to conclude.
5. After hearing the arguments of both the sides and going through the record it has been observed that the petitioners are specifically named in the F.I.R., mere perusal of which reveals that it is gory story of shocking crime, to say at the least. F.I.R. Further reveals that both the petitioners had caused fatal sickle blows to Faiz Karim (deceased). In the presence of the statement of injured P.W. Namely Riaz Ahmad no undue importance can be given to opinion of the police which even otherwise is not binding upon the Courts moreso when same is not found to be based upon sound material. As far as the plea of counter version is concerned same cannot be considered at this stage as the decision on such plea is likely to cause prejudice the case of either of the parties specially when the trial is nearing to its completion. Reliance in this regard is placed upon Allah Ditta v. The State (1990 SCM R 307). As far as delay in the trial is concerned that cannot be made a ground for bail as provisions guaranteeing the right of bail on the expiry of statutory period are no more part of section 497, Cr.P.C. Moreover the delay has been mainly caused due to the fact that initially challan under section 512, Cr.P.C. Was submitted as Mehboob Hussain petitioner and Qasim co-accused remained fugitive from the law for a period of more than two years which has necessitated the holding of de novo trial. As far as Mehboob petitioner is concerned he remained absconder fore a period of two years and eight months. It is settled law that such-like absconders lose some of their normal rights. While holding so benefit has been derived from the wisdom of Hon'ble Supreme Court depicted in a case Awal Gul v. Zawar (PLD .1985 SC 402). Consequently the petition in hand is found to be meritless and is dismissed. However, in the peculiar circumstances of the case the learned trial Court is directed to conclude the trial expeditiously with intimation to the Deputy Registrar (Judicial) of this Court.