MUREED vs THE STATE
This is a post-arrest bail application filed on behalf of accused Mureed, who is involved in a criminal case registered under sections 302, 504, 109, 337-A(i) and 34 of the Pakistan Penal Code 1860, facing allegations of causing a fatal hatchet injury to the deceased. The core legal question before the Sindh High Court was whether the applicant was entitled to the concession of post-arrest bail in view of the alleged delay in lodging the FIR, discrepancies in police documentation timings, and the rule of consistency given that co-accused had already been enlarged on bail. The court dismissed the bail application, holding that at the bail stage, courts should not enter into a deeper appreciation of evidence, and since a tentative assessment revealed a prima facie case falling under the prohibitory clause of section 497 of the Code of Criminal Procedure 1898, the applicant was not entitled to bail. The key principle laid down is that criminal cases must be judged on their own facts without deducing universal rules, and deeper appreciation of evidence or evaluation of investigative discrepancies is to be avoided during tentative assessment at the bail stage.
- Whether bail can be granted when a prima facie case involving an offence punishable with death or imprisonment for life is established?
- Should a court enter into deeper appreciation of evidence and investigation timings at the bail stage?
- Does a delay in lodging the FIR automatically entitle an accused to post-arrest bail in every case?
- Section 302, Pakistan Penal Code 1860
- Section 504, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 337-A(i), Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
1. ' KHAWAJA NAVEED AHMED, J.----This bail application has been moved by Miss Kaneez Fatima Shaikh on behalf of accused Mureed son of Bachoo, who is involved in case F.I.R. No,8 of 2005 under sections 302, 504, 109, 337-A(i) and 34, P.P.C. Of Police Station Ketti Bandar, District Thatta.
2. ' Brief facts of the prosecution case are that one Ruboo son of Usman by cast. Jokhio, resident of Deh Ibrahim Shah Jamani Taluka Ketti Bandar, District Thatta, had lodged report at the police station stating therein that they are cultivating their lands and his father Usman brothers Abdullah and Habibullah are residing together. They have dispute with Bachoo Jokhio and others over the ownership and possession of lands. In this background on 23-5-2005 the complainant along with his father Usman and brother Abdullah were giving water to their lands and were working together.
3. At about 0830 hours Mureed son of Bachoo armed with hatchet, Sharif son of Bachoo armed with hatchet, Bachoo son of Kando by caste Jokhio armed with Lathi had challenged Usman and his sons as to why they are giving water to the lands, which belonged to them. It is alleged that Mureed had given hatchet injury to Usma n on his head while Sharif had caused hatchet injury to Habibullah and Bachoo caused Lathi injury to the complainant Ruboo. Usman died while the other injured were taken to hospital and were discharged after treatment. All the three accused persons were arrested.
4. ' The learned counsel for the applicant has informed this Court that accused Sharif and Bachoo have been granted bail by the learned 1st Additional Sessions Judge, Thatta while the bail of present applicant has been rejected. The learned counsel while arguing the case has mainly relied upon the delay in lodging F.I.R. She states that F.I.R. Was lodged with 6-1/2 hours delay and no explanation has been given in the F.I.R. She has further stated that post-mortem was conducted prior to lodging of F.I.R. And even mashirnama of inspection of dead body was prepared much prior to lodging of F.I.R. She has further pointed out that F.I.R. Was lodged at 1500 hours while mashirnama was prepared at 1200 hours. She has further stated that no sample has been sent to the Chemical Examiner. She in support of her arguments has relied upon 1995 SCM R 127 (Mehmood Ahmed v. State) 2002 PCr.LJ 293 (Muhammad Yousaf v. State) and 2000 PCr.LJ 440 (Ghulam Haider v. State).
5. ' In case reported in 1995 SCM R 127 there was delay of two hours in lodging F.I.R. It has been held by the Honourable Supreme Court that:-- ' "In particular circumstances of the case, the delay in lodging F.I.R. Has assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate."
6. ' In the case reported in 2000 PCr.LJ 440 the facts of the case are different. In that case the accused was not physically present at the place of incident nor allegation of overt act was assigned to him, co-accused was already on bail, who was, assigned similar role and accused was in custody for last one year. The third case 2002 PCr. LJ 293 relied upon by the learned counsel is also distinguishable on facts. In this case, the accused was not named in the F.I.R. And was subsequently associated with the guilt by the complainant and another prosecution witness in their supplementary statements.
7. ' Ms. Farah Naz Kazi, learned counsel for the State has strongly opposed this bail application. She states that the learned trial Judge observed in his impugned order that the complainant and prosecution witnesses are regularly attending the Court but the Advocate for the accused does not attend the Court and as such there is no fault of the prosecution or of the trial Judge. She has further stated that accused Mureed is the main person who has given fatal blow on the head of deceased Usman, which resulted in his death and as such the offence against him is punishable with death or imprisonment for life and he is not entitled to grant of bail.
8. ' I have heard both the learned counsel and have gone through the case-law cited by the learned counsel for the applicant. It is the principle in criminal jurisprudence that every case of criminal nature is to be looked on its own facts and circumstances and Tule of universal application cannot be deduced from the decision in a particular case. In the present case, the learned counsel for the applicant has placed much emphasis on the delay in lodging of F.I.R. She has also argued the theory of substitution of accused in this case and has relied much upon the timings of preparation of certain documents by police and start of investigation prior to registration of the F.I.R. It is settled law that at bail stage, the Court should not enter into deeper appreciation of evidence and B should look tentatively upon the evidence collected by the prosecution in order to ascertain whether a prima facie case is made out against the accused or not. In the presence case, there is sufficient evidence to hold that prima facie case punishable with death or imprisonment for life is made out against accused/applicant Mureed. I will refrain from making any observation at this stage of the case as this may prejudice the case of either party at the trial. As far as present bail application is concerned it has no merits and is dismissed.
9. ' The observations made by me in this order are tentative in nature and trial Court should not be influenced by the same. The trial Court should decide the case on merits according to the evidence produced before it.
10. ' The learned counsel for the applicant has stated that accused is in custody for last three years.
11. The trial Court has mentioned in the order that complainant and witnesses are attending the Court on each date of hearing but the learned defence counsel does not turn up.
12. ' Be that as it may, if learned defence counsel is not attending the Court, the learned trial Court should appoint an Advocate on state expense and proceed with the case. If the co-accused enlarged on bail or their Advocates are not attending the proceedings before the trial Court, notices should be issued to accused for cancellation of their bail for misusing the concession of bail by protracting the trial. With this observation, I order that the trial Court shall complete the case within three months from the date of communication of the order and report compliance through MIT of this Court.