RAFIQUE AHMED and 2 others vs THE STATE
This criminal bail application arises from Crime No. 49 of 2008 registered at Police Station Hala under sections 364 and 34 of the Pakistan Penal Code 1860. The core legal question before the court was whether the applicants/accused were entitled to confirmation of their pre-arrest bail, considering the three-month delay in lodging the F.I.R., the absence of a stated motive for murder, and the fact that the alleged abductee was found to be alive, rendering the application of section 364 doubtful. The Sindh High Court held that since the abductee was alive and the assertion of murder had proven wrong, the exact nature of the offense—whether falling under section 364 or section 365 of the Pakistan Penal Code 1860—required further determination at trial. The court laid down the principle that where the primary allegation of murder in an abduction case is falsified by the survival of the abductee, and the state does not oppose bail, interim pre-arrest bail may be confirmed pending further inquiry into the precise offense committed.
- Whether interim pre-arrest bail should be confirmed when the alleged abductee is found to be alive and the primary allegation of murder is unproven?
- Does an unexplained three-month delay in lodging the F.I.R. justify the confirmation of pre-arrest bail?
- Whether an offense falls under section 364 or section 365 of the Pakistan Penal Code 1860 when the motive for murder is absent and the abductee survives?
- Section 364, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 365, Pakistan Penal Code 1860
ORDER
1. ' SAJJAD ALI SHAH, J.---Through this application the applicants/accused seek bail in Crime No,49 of 2008 of Police Station Hala, under section 364, 34, P.P.C.
2. 'Learned counsel for the applicants/ accused contends that the applicants being innocent have been falsely implicated in the instant case and since after completion of investigation challan has been filed, therefore, the applicants/accused are no more required by the police and, therefore, they may be enlarged on bail. It was next contended by the learned counsel that the F.I.R. Is delayed by three months and nowhere specifies that the abduction was made with intent to commit the murder of the abductee nor attributes any motive and the offence, if any, falls within the ambit of section 365, P. P. C .
3. ' On the other hand learned counsel for the State by affirming this position does not oppose the grant of bail.
4. ' I have hears the learned counsel for the respective parties and perused the record.
5. The narration of the F.I.R. Reflects that the applicants/accused had family terms with the alleged abductee and per contents of F.I.R. The applicants/accused had taken the abductee on the pretext to get her treated by a neuro-surgeon as the abductee had some problem regarding her mental health. Without alleging any enmity the complainant after narrating a story whereby her sister was abducted concluded that she has been murdered, which assertion has admittedly proven wrong as the abductee is still alive, therefore, it is yet to be determined as to whether the offence would fall under section 364, P.P.C.
6. ' In view of what has been discussed above, interim pre-arrest bail granted to the applicants/accused is confirmed on same terms and conditions.