MUHAMMAD AMEER GOONGA vs THE STATE and another
The petitioner sought post-arrest bail in a criminal case registered under sections 364, 302, and 34 of the Pakistan Penal Code 1860, involving the abduction and murder of the complainant's son. The core legal question was whether the petitioner was entitled to post-arrest bail considering the delay in the F.I.R., the nature of available evidence including last seen testimony and recovery, his physical condition as a deaf and dumb person, and the rule of consistency. The Lahore High Court accepted the petition and granted post-arrest bail to the petitioner. The court held that an unexplained six-day delay in lodging the F.I.R., the presence of only last-seen evidence, the questionable evidentiary value of a dead body recovery on pointation alone, and the petitioner's infirmity as a deaf and dumb person without a translator made out a case for further inquiry under Section 497(2) of the Code of Criminal Procedure 1898, bringing him within the purview of bail under Section 497(1) of the Code of Criminal Procedure 1898.
- Does an unexplained delay of six days in lodging an F.I.R. create doubt about the prosecution story for the purpose of bail?
- Whether mere recovery of a dead body on the pointation of an accused is sufficient to deny post-arrest bail when the case rests on circumstantial evidence?
- Is a deaf and dumb accused entitled to bail as being infirm under section 497(1) of the Code of Criminal Procedure 1898 when unable to defend himself without a translator?
- Does last-seen evidence combined with a recovery on pointation constitute a case of further inquiry under section 497 of the Code of Criminal Procedure 1898?
- Section 364, Pakistan Penal Code 1860
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 342, Code of Criminal Procedure 1898
- Section 361, Code of Criminal Procedure 1898
- Section 497(1), Code of Criminal Procedure 1898
ORDER
' MUHAMMAD ANWAR BHAUR, J.---Through this petition, Muhammad Ameer Goonga, the petitioner, seeks post-arrest bail in case F.I.R. No, 26 of 2009, dated 3-2-2010, registered under sections 364/ 302/34, P.P.C. With Police Station Jhawarian, District Sargodha.
2. The allegation against the petitioner is that he along with his co-accused called the complainant's son namely, Muhammad Zeeshan from his house but thereafter said Muhammad Zeshan has not returned, thus, instant case was registered against him along with his co-accused under "section 364, P.P.C. Thereafter, during investigation, the dead-. Body of said Muhammad Zeeshan was recovered and offence under section 302/34, P.P.C. Was added.
3. It is contended by learned counsel for the petitioner that there is an unexplained delay of 6-days in lodging of F.I.R.; that there is no direct evidence for the involvement of the present petitioner, who is deaf and dumb; that provisions of sections 342 and 361, Cr.P.C. Have not been taken into consideration as no translator has been hired by the Investigating Officer to understand petitioner's version; that only last seen evidence is available against him that he and his co- accused were going along with the deceased; that his co-accused have already been granted bail, as such, on the basis of rule of consistency he is also entitled to the concession of bail; that the petitioner has been behind the bars since his arrest i.e, 16-2-2009; that challan has already been submitted and the petitioner is no more required to the police for any further investigation.
4. Conversely, learned Deputy Prosecutor-General Punjab assisted by learned counsel for the complainant has resisted this petition vehemently on the grounds that the case of the petitioner is distinct and rule of consistency is not applicable as the dead-body was recovered on his pointation; that the petitioner is duly nominated in the F.I.R. And certain articles i.e, handkerchief, a ring having name of deceased I.D. Card and rope have also been recovered from him, which fully connects him with the commission of alleged offence; that during investigation he has been found guilty.
5. Argument heard. Record perused.
6. It has been found that the F.I.R. Has been lodged after an unexplained delay of six days, which creates doubt about the veracity of the prosecution story. There is only last seen evidence against the petitioner that the deceased was seen in the company of the petitioner and other co-accused, who have been granted bail. The occurrence has allegedly taken place on 28-1-2009 whereas dead-body was recovered on 16-2-2009. The allegation against the petitioner is that on his pointation the dead-body was recovered. Mere recovery of dead-body on the A pointatoin of the petitioner does not make out a case that he was involved in the commission of offence though he has been found guilty during the investigation. The petitioner is statedly deaf and dumb, as such, he was not in a position to defend himself without help of translator. Even otherwise, the petitioner is entitled to bail being infirm as provided under section 497(1), Cr.P.C. In view of above a case of further inquiry is made out in favour of the present petitioner.
7. Resultantly, this petition stands accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs,1,00,000 (rupees one lac) with one surety in the like amount to the satisfaction of the trial Court.