AHMED ALI and another vs THE STATE
This matter concerns a post-arrest bail application filed by two accused persons charged with murder under Sections 302 and 34 of the Pakistan Penal Code 1860. The core legal question was whether the prosecution had established a prima facie case sufficient to deny bail, given the significant evidentiary gaps and procedural irregularities identified by the defense. The court observed an unexplained two-day delay in the registration of the First Information Report (F.I.R.), despite the police having knowledge of the incident shortly after it occurred. Furthermore, the court noted the absence of any recovery from the accused, a four-day delay in the police inspection of the crime scene, and the fact that the complainant, rather than the police, had collected the crime scene evidence (empties). Additionally, a witness statement indicated the assailants had muffled faces, casting doubt on identification. Holding that these factors collectively rendered the prosecution's case doubtful, the court granted bail, ruling that the case required further inquiry under Section 497(2) of the Code of Criminal Procedure 1898. The principle laid down is that where prosecution evidence is marred by unexplained delays and procedural lapses, a case for further inquiry is established, warranting the grant of bail.
- Does an unexplained two-day delay in lodging an F.I.R. constitute grounds for further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Can bail be granted in a murder case where the prosecution fails to explain significant procedural lapses in evidence collection?
- Does the failure of the police to timely inspect the crime scene and the collection of evidence by the complainant create sufficient doubt to warrant bail?
- Is a case for further inquiry established when there are material contradictions regarding the identification of the accused?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' MUHAMMAD TASNIM, J.---Applicants are booked in crime No,56 of 2011 under sections 302 and 34, P.P.C. Of Police Station, Sakhi Pir Hyderabad. In the first place, applicants applied for bail before the learned IIIrd. Additional Sessions Judge, Hyderabad, but their bail application was dismissed per order dated 14-9-2011. Against the aforesaid order, present bail application has been filed.
2. The prosecution case as set out in the F.I.R. Is that complainant's brother Zaheer was married 5 years ago with daughter of Ahmed Qureshi and the relation between both were not good on account that deceased Zaheer divorced his wife through Court due to which there was dispute with his in-law. On 16-4-2011 complainant's brother Muhammad Zaheer was sleeping on cot outside on the road when at about quarter passed three night time, there was firing shots and complainant made look from window of his house and saw under the electric light Ahmed Qureshi and Naeem Qureshi armed with pistol were firing upon brother Muhammad Zaheer and went away on motorcycle. In the meantime, Muhammad Shahid Son of Zaheeruddin Qureshi and other arrived there then complainant and Muhammad Shahid shifted the injured on motorcycle to Civil Hospital, Muhammad Sajjid Son of Javeed (2) Ghulam Muhammad were also reached there, in whose presence deceased disclosed that upon him ex-father-in-law Ahmed Qureshi, ex-brother-in-law Naeem Qureshi have fired upon him on account of "Talaq". During treatment, the injured succumbed to injuries, thereafter police was informed after postmortem etc. Police handed over the body to complainant, thereafter reports for investigation.
3. Learned counsel for the applicant has submitted that the alleged occurrence took place on 16- 4-2011, but the F.I.R. Was lodged on 18-4-2011 after delay of two days which has not been explained by the prosecution. He says that alleged occurrence took place in the night time at about 3-15 a.m.
And it was not practically possible to identify some body in the night time. Learned counsel says that applicants have been implicated in this case falsely due to previous matrimonial dispute, as alleged in the F.I.R. Learned counsel says that Muhammad Izhar who was allegedly sleeping with the deceased has stated in his statement that accused persons came with muffled faces. Learned counsel further submits that present applicants were arrested on 7-5-2011, but no recovery whatsoever has been effected from the present applicants. He says that place of occurrence was visited by the police after four days of the occurrence and mashirnama of place of occurrence was prepared on 20-4-2011. He further submitted that empties collected by the complainant kept with him, but such empties were not delivered to the police on the day of registration of the F.I.R., but same was delivered to them on 20-4-2011. He says that since delay in lodging of F.I.R. Has not -been explained, as there was matrimonial dispute between the parties, therefore, false implication with the commission of offence cannot be ruled out.
4. On the other hand, learned counsel for the complainant has vehemently opposed the grant of bail and has submitted that there is ample evidence available on record, which connects the present applicants with the commission of offence. He says that the present applicants are fully connected with the crime and it being a murder case, they are not entitled to enlarge on bail, as their cases falls under prohibitory clause.
5. Learned A.P.-G. Has also opposed the grant of bail, as according to the learned A.P.-G, there is ample material available with the prosecution to connect the present applicants with the commission of offence.
6. I have heard the learned counsel for the, parties and have perused the record.
7. An examination of the record, it appears that the alleged occurrence took place on 16-4-2011 at 0315 hours, but the present F.I.R. Was registered on 18-4-2011 at 1500 hours. Admittedly there is delay of about 2 days, which has not been explained by the prosecution. Present applicants were arrested on 7-5-2011, but no recovery whatsoever has been effected from them. Admittedly, there is matrimonial dispute between the parties, as mentioned in the F.I.R. One prosecution witness namely Muhammad Izhar has stated in his statement under section 161, Cr.P.C. That accused persons committed the murder with muffled faces. There is admittedly delay of four days in inspection of the site of the occurrence and mashirnama was prepared on 20-4-2011, but said delay has not been explained. It is also an admitted position that empties from the place of occurrence were not collected by the police, but the same were collected by the complainant party, which were not delivered to the police on the day of registration of the F.I.R., but same was delivered to the police on 20-4-2011 the day on which the place of occurrence was visited by the police. It is also an admitted position on record that dead body was taken by the police to the mortuary and dead body was received at 5-30 a.m. And post mortem was started on 6-20 a.m.
And it was completed at 8-30 a.m., thereafter the dead body was handed to the legal heirs. Since the dead body was brought at the hospital at 5-30 a.m. On the day of occurrence, therefore, it can be said that it was well in knowledge of the complainant party and the police about the occurrence, but the F.I.R. Was lodged after two days of the occurrence.
8. All the above-mentioned facts if considered collectively, then they make the prosecution case doubtful, in my view this case requires further inquiry in terms of subsection (2) of section 497, Cr.P.C. Accordingly, both the applicants are admitted to bail, on their furnishing solvent sureties in the sum of Rs,200,000 (Rupees two hundred thousand) each and PR bond in the like amount, to the satisfaction of learned trial Court.
9. Learned trial Court is directed to proceed with the case expeditiously and try to dispose it of within a period of four months under intimation to this Court. If the applicants/accused, who have been granted bail, misuse the bail or avoid to proceed the case, their bail be cancelled in accordance with law.