KHUDA BUX and another vs THE STATE
This matter concerns a post-arrest bail application filed by two accused persons, Khuda Bux and another, in a case involving allegations of robbery. The core legal question was whether the applicants were entitled to the grant of bail given the circumstances of the case, specifically the significant delay in lodging the First Information Report (F.I.R.), the existence of a prior cross-case between the parties, and the lack of specific roles assigned to the accused. The High Court held that the applicants were entitled to bail. The Court observed that there was an unexplained 26-day delay in lodging the F.I.R., the present case appeared to be a counterblast to an earlier F.I.R. filed by one of the accused against the complainant, and no recovery was effected from the applicants. The key principle laid down is that where the prosecution case suffers from unexplained delay, lacks specific role attribution, and appears to be a counterblast to a prior criminal complaint, the case of the accused warrants further inquiry, and bail should not be withheld as a form of punishment.
- Does an unexplained delay of 26 days in lodging an F.I.R. constitute grounds for further inquiry in a bail application?
- Can bail be denied as a form of punishment when the prosecution fails to assign a specific role to the accused?
- Is the existence of a prior cross-case between the parties a relevant factor in determining the entitlement to bail?
- Section 161, Code of Criminal Procedure 1898
- Section 382, Pakistan Penal Code 1860
- Section 147, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 346, Pakistan Penal Code 1860
- Section 114, Pakistan Penal Code 1860
- Section 506(2), Pakistan Penal Code 1860
- Section 337-A(i), Pakistan Penal Code 1860
- Section 337-F(i), Pakistan Penal Code 1860
- Section 504, Pakistan Penal Code 1860
- Section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance 1979
ORDER
1. ' SAYED PIR AL! SHAH, Urgency application allowed.
2. Heard arguments.
2. ' Learned counsel argued that there is inordinate delay of about 26 days in lodging the F.I.R. As the incident took place on 9-2-2008 whereas F.I.R. Was lodged on 5th March, 2008. He argued that such a delay has not been supported by P. Ws. Abdul Kareem Bhatti and Abdul Haq Bhatti in their 161, Cr.P.C. Statements. It is contended that prior to this F.I.R. Accused Bhoro had lodged F.I.R. Bearing Crime No,4 of 2008 under sections 382, 147, 148, 149, 346, 114, 506(2), 337-A(i), 337-F(i) and 504, P.P.C.
3. Against complainant Abdul IChaliq and eyewitnesses Abdul Haq and Abdul Karim amongst 29 others. He further submits that the present case is a counterblast of earlier F.I.R. Lodged by applicant/accused Bhoro. According to him it is unbelievable that the applicant living in the same vicinity knowing each other will commit robbery to expose themselves for the alleged crime. His contention is that both the applicants are brothers but name of father of applicant/accused Khuda Bux has been shown as unknown. It is argued that the allegations mentioned in the F.I.R. Are general in nature and no specific role has been assigned to each accused. His further contention is that section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979 will not apply in the matter and there is no recovery of the alleged robbed amount and as such the case of applicants needs further inquiry. In support of his contention he relied upon 2007 YLR 2340; 2008 PCr.LJ 721; 2007 YLR 145.
4. ' On the other hand, Mr. Mukhtiar Ahmed Khanzada, State Counsel submits that in this case bail before arrest application filed on behalf of accused Muhammad Zaman is also pending decision.
5. His contention is that the delay in lodging of F.I.R. Has been explained and thus, the applicants/accused are not entitled for bail at this stage.
6. ' Perusal of case papers shows that allegedly present applicants along with absconding accused Muhammad Zaman, Jumo and Ahmed committed robbery on 9-2-2008 in the house of complainant Abdul Khaliq, whereas this F.I.R. Bearing Crime No,29 of 2008 was lodged on 5-3-2008 at 7-00 p.m. To a query put by the Court, learned State Counsel submits that no recovery whatsoever has been made from the present applicants as they made their escape good from the scene of occurrence. It is thus, crystal clear that no specific role whatsoever has been assigned to the present applicants. There is a delay of 26 days in lodging of F.I.R. Accused Jumo and Ahmed along with accused Muhammad Zaman went underground and as such, They were shown absconders at the time of submission of challan. Admittedly bail before arrest application in respect of absconding accused Muhammad Zaman is subjudice before the trial Court.
7. Proceedings against absconding accused Jumo and Ahmed are yet to be initiated. Present applicants were arrested on 9-3-2008.
8. Under the given circumstances and considering the law relied upon by the learned counsel, the case of both the applicants needs further inquiry and as such their bail cannot be withheld as a sort of punishment, more particularly when F.I.R. No,4 of 2008 was lodged much prior by accused Bhoro against Abdul Khaliq who is complainant in this case. Both the applicants are admittedly brothers and as such their false implication cannot be ruled out. Both of them are entitled to bail and they are accordingly granted bail on furnishing surety in the sum of Rs,1,00,000 each and P.R.
9. Bond in the like amount to the satisfaction of trial Court.