ISRAR JAMSHED alias JAMSHED vs STATE and another
This is a criminal bail petition filed by the petitioner, Israr Jamshed alias Jamshed, seeking post-arrest bail in case FIR No. 255 dated 12-4-2008 registered under Section 302/364 of the Pakistan Penal Code 1860 at Police Station Paharipura, Peshawar, after bail was refused by the lower courts. The core legal question before the Peshawar High Court was whether the petitioner was entitled to post-arrest bail given the absence of a recovered dead body, direct eyewitness testimony, or 'last seen' evidence, notwithstanding a supplementary statement and statement under Section 164 of the Code of Criminal Procedure 1898 implicating him. The Court held that since the dead body had not been recovered, there was no direct or last-seen evidence, no confession was made, and the alleged demand of money for the recovery of the body required trial proof, the case against the petitioner was prima facie one of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898. Consequently, the Court granted bail to the petitioner. The key principle laid down is that where a murder case lacks the recovery of a corpus delicti (dead body), direct evidence, or eyewitness accounts, and hinges on circumstantial matters requiring further proof, the accused makes a strong case for post-arrest bail under the category of further inquiry.
- Is an accused entitled to post-arrest bail in a murder case where the dead body has not been recovered and there is no direct or last-seen evidence?
- What is the evidentiary value at the bail stage of a supplementary statement and a statement recorded under Section 164 of the Code of Criminal Procedure 1898 when no corpus delicti is found?
- Does the absence of direct evidence and the requirement to prove a motive at trial bring a murder case within the scope of further inquiry under bail jurisprudence?
- Section 302, Pakistan Penal Code 1860
- Section 364, Pakistan Penal Code 1860
- Section 156(3), Code of Criminal Procedure 1898
- Section 164, Code of Criminal Procedure 1898
Petitioner Israr Jamshed alias Jamshed, is arrested, in case FIR No, 255, dated 12-4-2008, under Section 302/364 PPC of Police Station Paharipura, Peshawar, and after refusal of bail by the Courts below, he moved the instant bail petition to this Court.
2. The report of instant case was initially made by Umar Rahman, complainant, on 17-12-2007 at 1825 hours, regarding disappearance of his son Ali Rehman, who was missing since 29-11-2007, against unknown persons, which was recorded, vide Daily Diary No, 8, dated 17-12-2007. However, he disclosed that Ali Rehman was charged in an abduction case alongwith Qudrat Shah and Jamshed etc., and he was arrested, and released on bail after four months, but the said case is still pending in the Anti-Terrorism Court, and that All Rehman used to live with the said persons.
3. However, during the enquiry under Section 156(3) Cr.P.C, supplementary statement of complainant was recorded on 10.4-2008, followed by statement under Section 164 Cr.P.C., in which he charged the petitioner and his co-accused, after due satisfaction. On the pointation of complainant, a suspected grave was dug out in the presence of Magistrate, but found empty.
4. Learned counsel for the petitioner argued that there is no direct, or last seen evidence against the petitioner, and Section 302 PPC is not applicable, because the dead body has not been recovered so far. Regarding evidentiary value of supplementary statement and statement under Section 164 Cr.P.C, he relied on SCM R 2003 1419, SCM R 2001 14(B), P.Cr.L. J. 2008 129, YLR 2007 1576, 2004 P.Cr.LJ. 143 and PLJ 2007 Cr. Cases 298. Similarly, on the delay in lodging the report, and no direct evidence, reliance was placed on 2007 M LD 1460, 2007 P.Cr.L.J. 1579 and 1996 SCMR 1485.
Learned counsel for the petitioner also relied on case law reported as 1990 P.Cr.L.J. 1541 and 2008 YLR 1134 in the former case, due to non-recovery of dead body, bail was allowed while in the latter case in similar circumstances, accused was acquitted.
5. On the other hand, learned counsel for the complainant argued that merits of the case were touched deeply, by his opponent whereas he was required to assess the evidence tentatively.
There was no delay in lodging the report and prompt report of the complainant was recorded, vide daily diary. The motive was also mentioned in the said report and the petitioner was arrested when he was coming to the complainant for receipt of Rs, 80,000/-, for handing over dead body of Ali Rehman to him. On the evidentiary value and delay in lodging the FIR the learned counsel relied on PLD 1997 SC 545(F), 2005 P.Cr.L.J. 43 and 1995 SCM R 1765. Learned counsel for the State argued that there was no motive for false charge, and the petitioner was not entitled to bail.
6. Be that as it may, the dead body of Ali Rehman has not been recovered so far. Indeed, the petitioner is directly charged, but there is no direct, or last seen evidence against him. He made no confession, and the case is prima facie of further enquiry. The alleged demand of money, for the recovery of dead body, is yet to be proved at the time of trial. Thus, keeping in view the peculiar circumstances of the case, petitioner is entitled to bail. He be released on bail subject to the furnishing of bail bonds in the sum of Rs, one lac, with two sureties, each in the like amount, to the satisfaction of the Maqa/Judicial Magistrate/MOD.