MUHAMMAD RASHID vs THE STATE
This matter arises from a bail application filed by the accused Muhammad Rashid against the order of the Additional Sessions Judge, Karachi East, dismissing his bail plea in a case registered under sections 302 and 34 of the Pakistan Penal Code. The core legal question was whether the applicant was entitled to post-arrest bail considering the delay in lodging the F.I.R., the attribution of mere instigation rather than the fatal shot, and the existence of two conflicting versions of the incident arising from cross-cases. The Sindh High Court held that the case called for further inquiry under section 497(2) of the Code of Criminal Procedure due to the delayed F.I.R., conflicting versions, and lack of active attribution of the fatal blow to the applicant. Consequently, the court granted post-arrest bail to the applicant subject to furnishing solvent surety. The key principle laid down is that where two conflicting versions of an incident exist and the role attributed to an accused is limited to instigation with an unexplained delay in the FIR, the case falls within the scope of further inquiry warranting the grant of bail.
- Whether post-arrest bail can be granted when the role attributed to the accused is limited to instigation?
- Does an unexplained delay in lodging the FIR justify the grant of bail under the purview of further inquiry?
- Whether the existence of two cross-cases or conflicting versions of the same incident makes the case one of further inquiry under section 497(2) of the Code of Criminal Procedure 1898?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER
1. ' MUHAMMAD IQBAL MAHAR, J.--- This bail application is directed against the order dated 9-3-2009 passed by the learned I-Additional Sessions Judge, Karachi East in Crime No,253 of 2008 for the offence punishable under section 302/34, P.P.C. Of Police Station Al-Falah, Karachi East.
2. ' Brief facts of the prosecution case are that on 6-10-2008 the complainant Manner Arif, his brother Adnan Arif, cousins Khalid Mehmood and Muhammad Imran were passing through main Bazar Azeem Pura where they saw Kashif and Shakeel quarrelling with each other and some persons were standing there. Adnan Arif tried to intervene, but at instigation of Waqas and Rashid co- accused Kashif fired at Adnan Arif, which hit him and he fell down. Thereafter, the accused Kashif and others went away by firing in the air. The complainant party took the injured to Jinnah Hospital where he was admitted and on 8-10-2008 he succumbed to the injuries. Thereafter, the complainant lodged the F.I.R. On 11-10-2008. Apart from this, another F.I.R. No,247 of 2008 was registered at same Police Station for the same offence by Muhammad Kashif. The applicant/accused was arrested on 18-11-2008 and has been challaned.
3. ' Learned counsel for the applicants contends that there is delay of 5 days in lodging the F.I.R. And in only instigation is alleged against the applicant while firing at the deceased is attribution to the co-accused. He further contends that nothing has been recovered from the possession of applicant/accused and in F.I.R. No,247 of 2008 presence of the applicant at the place of incident is not shown. He further contends that there are, two versions of the same incident and the applicant is no more required for further investigation by the police, therefore, the applicant pray for the grant of bail.
4. ' On the other hand, learned State counsel has opposed to the grant of the application.
5. ' I have given due consideration to the arguments advanced by the learned counsel for the parties and have gone through the material available on record.
6. 'Accordingly, there are two versions regarding one incident and in F.I.R. No,247 of 2008 the presence of applicant at the place of incident is not shown by the complainant Muhammad Kashif, whereas in the instant F.I.R., only it is alleged that the applicant and the co-accused Waqas instigated co- accused Kashif. There is unexplained delay of five days in lodging the F.I.R.
7. ' In such circumstances, the case against the applicant requires further inquiry as envisaged by section 497(2), Cr.P.C., therefore, I allow this application and grant bail to the applicant subject to furnishing solvent surety in the sum of A Rs,200,000 with P.R. Bond in the like amount to the satisfaction of the trial Court.
8. ' This bail application stands disposed of accordingly.
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