MASHOOQUE CHANDIO vs THE STATE
This matter concerns a post-arrest bail application filed by an accused facing trial for murder under sections 302 and 34 of the Pakistan Penal Code 1860. The core legal question was whether the applicant was entitled to bail given the delay in the trial proceedings, the lack of specific attribution of the fatal injury, and the procedural lapses in the investigation. The Court held that the applicant was entitled to bail, primarily due to the inordinate delay in the trial process—specifically, that the charge had been framed over a year prior without any prosecution witnesses being examined, and the delay was not attributable to the applicant. Furthermore, the Court noted the unexplained delay in lodging the F.I.R. and recording witness statements under section 161 of the Code of Criminal Procedure 1898. The key principle laid down is that an accused cannot be kept indefinitely behind bars without trial, and where the prosecution fails to progress the case, the resulting hardship constitutes sufficient grounds for the grant of bail, particularly when procedural irregularities in the investigation are evident.
- Does an inordinate delay in the trial process, not attributable to the accused, constitute sufficient grounds for the grant of bail?
- Is the unexplained delay in recording witness statements under section 161 of the Code of Criminal Procedure 1898 a relevant factor in bail adjudication?
- Can an accused be kept in custody indefinitely when no prosecution witnesses have been examined for over a year after the framing of the charge?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
ORDER
1. ' KHALID ALI Z. QAZI, J.---Applicant Mashooque Chandio has moved this application for his bail in crime No,24 of 2005 of Police Station Drigh, for offence under sections 302, 34, P.P.C., who is facing trial in the Court of Additional Sessions Judge, Kamber.
2. ' The brief facts of the prosecution case as per F.I.R. Lodged by complainant All Jan with Police Station, Drigh on 27-3-2005 are that about ten days prior to lodging of F.I.R., accused Khashoo's motorcycle collided to complainant's brother Hakim Ali, on which harsh words were exchanged in between accused Khashoo and complainant's father Madad Ali. On the day of incident viz. 26-3- 2005 he and his father Madad Ali were present in their lands, at about 5-00 p.m. Accused Khashoo, Sikandar, Masbooque with guns came there. Accused Khashoo challenged his father Madad Ali and asked him that he would not be spared. On saying so, all accused fired upon complainant's father Madad Ali which hit him, who cried and fell down. Complainant raised cries, which attracted P.W. Qurban Ali and All Gul there and accused fled away. Complainant being empty handed and due to fear of weapons did not follow the accused. Then complainant noticed that his father Madad All had sustained firearm injuries on his head. His blood was oozing and he succumbed to injuries on spot. Due to non-availability of transport and night hours at morning hours he brought dead body at Police Station and lodged F.I.R.
3. ' After completing the investigation police submitted the challan in the learned trial Court and charge has been framed on 31-7-2008, but as yet no prosecution witness has been examined and the delay caused in the trial cannot be attributed to the present applicant as per learned counsel for the applicant.
4. ' Mr. Aftab Ahmed Gorar, learned Advocate for the applicant, states that all the prosecution witnesses are closely related to each other, therefore, they are interested in the case of prosecution and there is inordinate delay in lodging of the F.I.R., as the alleged incident had taken place on 26- 3-2005 at about 1700 hours, while it has been reported on the following day i,e, on 27-3-2005, at 0600 hours. He further added that there are general allegations of making fires at deceased against three accused including present applicant, but no specific injury or role has been assigned to him, hence it would be determined at trial that who caused the fatal shot to the deceased and who is responsible for his murder. He further added that the complainant with mala fide intention and ulterior motives has roped all the members of one and same family in the present case. He also submitted that previous and grudge between parties has been admitted by complainant himself in the F.I.R., therefore, false implication of applicant cannot be ruled out. He also contended that 161, Cr.P.C. Statements of the prosecution witnesses have been recorded with delay of. 13/14 days, without offering any explanation, which is fatal to the prosecution. He further added that the motive for the alleged incident as disclosed in the F.I.R. Is not so strong that one can commit murder of somebody on such petty matter and that the applicant had never absconded; he was all along available at the above address and was busy in daily pursuits of his life, but police submitted charge sheet in his absence showing him absconding without his knowledge. He further added that the applicant was arrested on 14-9-2006 and since then he is in custody and it is a case which may fall in the hardship case category, because the charge was framed on 31-7-2008, but as yet no prosecution witness has been examined and the delay caused in the trial cannot be attributed to the present applicant.
5. ' Mr. Nisar Ahmad G. Abro, learned State Counsel, has conceded the above position and does not oppose the bail application.
6. ' I have considered the arguments advanced by learned counsel for the parties and perused the material available on record.
7. In view of peculiar facts and circumstances of the case it would be seen that accused was arrested on 14-9-2006, but since then he is in custody and even after framing of charge about a year earlier the applicant was dragged in the trial without progress and therefore, is facing hardship in conclusion of his trial. It is well settled principle of law that one cannot be kept behind bars without trial. It may further be observed that the incident allegedly took place on 26-3-2005, at 1700 hours, but the F.I.R. Was lodged on 27-3-2005 at 0600 hours and the statements under section 161, Cr.P.C. Of P.Ws. Were recorded after 13/14 days without explanation, which is also not justified. Under the circumstances, the learned Advocate for the applicant has succeeded in making out a case for grant of bail. I, therefore, admit the applicant on bail subject to furnishing of the solvent surety in the sum of Rs. 300,000 and P.R. Bond in the like amount to the satisfaction of the learned trial Court. These are the reasons for any short order dated 17-7-2009 to hereby bail application was allowed.