SHAFIQUE MUKHTAR alias GUDOO vs THE STATE
The applicant, Shafique Mukhtar alias Gudoo, sought post-arrest bail in Crime No. 32 of 2005 registered under sections 302, 436, 380, and 411 of the Pakistan Penal Code at Police Station Shahrah-e-Faisal. The prosecution case alleged that the applicant was seen at the deceased's flat shortly before smoke and the deceased's dead body were discovered, and that stolen ornaments were later recovered from his possession. The applicant's counsel contended that the recovery of the incriminating wire and ornaments was doubtful, that the witnesses were related, and that the applicant had been detained for nearly three years without trial. The State opposed bail, highlighting eyewitness accounts and identification of the recovered property. The Court observed that material discrepancies existed regarding the delayed FIR lodging and the circumstantial evidence. Holding that the case called for further inquiry under the law, the Court admitted the applicant to post-arrest bail subject to the furnishing of required surety bonds.
- Whether the delayed lodging of an FIR in the presence of contradictory circumstances makes a case one of further inquiry for the grant of bail?
- Does the lack of recovery of the primary weapon of offense during investigation justify granting post-arrest bail?
- Whether prolonged incarceration without the commencement of trial entitles an accused to the concession of bail?
- Section 302, Pakistan Penal Code 1860
- Section 436, Pakistan Penal Code 1860
- Section 380, Pakistan Penal Code 1860
- Section 411, Pakistan Penal Code 1860
ORDER
1. ' MRS. YASMIN ABBASEY, J.---Applicant Shafique Mukhtar has moved this bail application in F.I.R.
2. No.32 of 2005 under sections 302/436/380/411, P.P.C., Police Stations Shahrah-eFaisal.
3. ' Case of prosecution is that on 27-1-2005 one neighbour of complainant Asif Siyal, who was asked by the complainant to look-after his family in his absence when came to his house, applicant came out and informed to Asif Siyal that Mst. Sajida is not present and some other visitors have come. It is stated that applicant did not allow Asif Siyal to see inside the flat and brought him downstairs and started making absurd talks. However, Asif returned to his house whereas applicant went inside the flat.
4. ' At about 12-00 noon some persons noticed of smoke coming out from the flat it was opened Mst.
5. Sajida was found dead and wire was tied around her neck and body was burnt. According to complainant he suspected that due to some enmity his nephew Shafique Mukhtar murdered his wife.
6. ' Learned counsel for the applicant referring to the contents of F.I.R. And placing the photocopy of photograph of deceased has argued that according to prosecution deceased was murdered by strangulating her neck through wife, which is also appearing in photograph, but neither that wire was secured by police nor has been shown as case property. He further argued that the alleged recovery of articles of deceased from the possession of this applicant also appears to be doubtful.
7. The incident took place on 27-1-2005, recovery as alleged was made on 3-4-2005, no evidence has been placed on record to connect ornaments said to be recovered from the possession of this applicant belonging to deceased.
8. ' These arguments have been refuted by the learned counsel for State referring to the statement of complainant wherein he has identified the gold ornaments recovered from the possession of this applicant to be that of the deceased. Learned State counsel further objected to the grant of this bail application on the ground that there is sufficient evidence of Asif Siyal and Mst. Zainbun Nisa who had seen this applicant present at the house of complainant just before the incident, which is sufficient proof of the fact that he is involved in commission of offence.
9. ' It is further argued by applicant's counsel that all the prosecution witnesses are relatives to each other therefore, evidence is not reliable and as yet no prosecution witness has been examined in the matter and the applicant is behind the bars for the last about three years although needs consideration.
10. The fact that Asif Siyal to whom the responsibility of looking after the family of deceased was given instead of lodging F.I.R. On the very day waited for return of complainant from Sukkur for lodging the F.I.R. Indefinite facts are appearing on record and at this stage in view of these indefinite evidence no conclusion can be drawn and I am of the view that it is a case of further enquiry.
11. ' Hence applicant is allowed to be released on bail subject to furnishing surety in the sum of Rs.10,00,000 and P.R. Bond in the like amount to the satisfaction of the learned trial Court.