JUNAID vs THE STATE
This matter arises from a post-arrest bail application filed on behalf of the applicant Junaid, who was detained in connection with Crime No. 404 of 2006 registered under sections 324/34 of the Pakistan Penal Code at Police Station Saeedabad Karachi. The core legal question was whether the applicant was entitled to post-arrest bail where he was alleged to be armed with a dagger but no overt act of using it was attributed to him, and his case fell within the scope of further inquiry. The Sindh High Court allowed the bail application, holding that the mere presence of the accused without evidence of actual use of the weapon was insufficient to establish the prosecution's case at this stage, bringing the matter within the ambit of further inquiry under section 497(2) of the Code of Criminal Procedure. The key principle laid down is that the mere presence of an accused person at the scene of the crime, without active participation or overt acts attributed, constitutes a ground for further inquiry warranting the grant of bail.
- Does the mere presence of an accused at the scene of a crime, without any overt act attributed, bring the case within the ambit of further inquiry for the purpose of bail?
- Whether an accused armed with a weapon who is not shown to have used it is entitled to post-arrest bail?
- Can bail be granted when no prosecution witnesses have been examined during a significant period of detention?
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 302, Pakistan Penal Code 1860
ORDER
1. ' BIN YAMIN, J.---This order will dispose of this bail application filed on behalf of applicant/accused Junaid son of Attaur Rehman who is detained in jail in crime No. 404 of 2006 registered under sections 324/34, P.P.C. At Police Station Saeedabad Karachi.
2. ' Brief facts of the case are that on 31-12-2002 complainant Muhammad Shahid Zia lodged F.I.R. At aforementioned police station therein that on that day his younger brother brought ox for sacrifice on Eid occasion. The said ox was fastened outside the house 'with the telephone pole. He further stated that applicant/accused and others quarrelled with his younger brother and asked him to remove ox from the place where it was tied. It is further alleged that aforesaid dispute between the parties was subsided on the intervention of Muhammad Majid and Zaiuddin brother and father respectively of the complainant. It is further submitted that the applicant/accused and his companions went away to their house while threatening that they will see. Thereafter at about 9- 00 hours accused Zawar armed with T.T. Pistol, accused Talah with big weapon and accused Junaid armed with dagger came and attacked on complainant party. In the incident, as a result of firing made by accused Zawar Khan by pistol, Muhammad Majid brother of complainant sustained bullet injury on the left leg and one bullet hit to his father Zaiuddin on his belly. Thereafter the applicant/accused and his companions ran away from the place of wardat.
3. ' Injured persons were taken to Abbasi Shaheed Hospital, whereas complainant lodged F.I.R. Against the applicant/accused and two others for causing fire-arm injuries.
4. ' After registration of F. L R. Applicant/accused and two others were arrested in this case. That applicant/accused is detained in jail for about last 18 months and not a single witness has been examine by the prosecution.
5. ' I have heard advocate for applicant/accused as well as learned State counsel and perused the material placed on record.
6. ' Learned counsel for applicant submitted that applicant/accused is innocent and has falsely been implicated in this case. Furthermore the applicant/accused at the time of this incident was allegedly armed with dagger but there is nothing on the record to show that he actually used the said dagger. Learned counsel further contended that even in the final challan filed in the Court it is recorded by the police that applicant/ accused and co-accused Talha were present on the spot, but they were empty handed, and thus due to different versions of complainant and police, the case of accused also falls within the ambit of further enquiry. He therefore, requested for grant of instant bail application and release of applicant/accused during the pendency of the case.
7. ' Learned State counsel has opposed this bail application and submitted that case registered against the applicant/accused is under section 324/34, P.P.C. For which punishment provided is imprisonment for 7 years. He further submits that case is at preliminary stage and evidence of none of the prosecution witnesses has been recorded, therefore, it is yet to be determined as to what part is assigned to the applicant/accused in the commission of the offence. That one of the injured namely Ziuddin after this incident has expired and application has been made before the trial Court for conversion of this offence from 324 to 302, P.P.C. He requests for rejection of instant bail application.
8. I have considered the contentions raised at bar and gone through the material available on record. The allegation against the applicant/accused is that he was present at the time of this incident duly armed with dagger, but nothing is available on record to show that he has actually used the dagger. Merely presence of applicant/accused is not sufficient to establish the case of prosecution against the applicant/ accused.
9. ' In the light of above noted discussion, I am of the opinion that case of applicant/accused falls, within the ambit of further inquiry. I, therefore, allow this bail application and order that the applicant/accused be released on bail on his furnishing surety in the sum of Rs.100,000 (Rupees One Lac Only) and P.R. Bond in the like amount to the satisfaction of the trial Court.