BAKHIT NAWAB vs THE STATE
This criminal bail application arises from Crime No.467 of 2010 registered under Section 302 of the Pakistan Penal Code 1860 at Police Station Jackson, wherein the applicant sought post-arrest bail after his initial application was dismissed by the Additional Sessions Judge. The core legal question was whether the applicant was entitled to bail in the absence of eye-witnesses, due to an inordinate and unexplained delay in lodging the FIR, and given the lack of incriminating recoveries or material connecting him to the offense beyond an unverified motive. The Sindh High Court held that the case called for further inquiry under subsection (2) of Section 497 of the Code of Criminal Procedure 1898 and admitted the applicant to post-arrest bail. The key principle laid down is that where an incident is unseen, FIR lodging is heavily delayed without explanation, and no recoveries or supporting material substantiate the motive alleged, the case falls within the scope of further inquiry, warranting the grant of bail.
- Whether post-arrest bail can be granted when an incident is unseen and no recovery is effected from the accused?
- Does an inordinate and unexplained delay in lodging the FIR make a case one for further inquiry under subsection (2) of Section 497 of the Code of Criminal Procedure 1898?
- Is an unsubstantiated allegation of a threat sufficient to connect an accused to a murder for the purpose of refusing bail?
- Section 302, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' MUHAMMAD TASNIM, J. Applicant Bakhit Nawab is booked in Crime No.467 of 2010, registered under section 302, P.P.C. At Police Station * Jackson. The applicant initially applied for bail before IV- Additional Sessions Judge, Karachi-West, who dismissed the bail application per order dated 10-11- 2010 for the reasons mentioned therein. Against the aforesaid order present bail application has been filed.
2. The case of prosecution as set out in the F.I.R. Is that a written complaint was filed by complainant Haroon Zaib through TPO on 14-5-2010 wherein he stated that his brother Ameer Zaib who was a labourer and aged about 24 years his dead-body was recovered on 16-10-2009 while their mother was admitted in Cancer Ward of Ziauddin Hospital, Nazimabad, Karachi. It is stated that complainant was in the native village for burial of his mother the complainant came back to Karachi. It is claimed that fifteen to twenty days earlier of the murder of the complainant's brother he had informed the complainant that applicant, had threatened him for killing him if he marries to a lady to whom complainant's brother wanted to marry, therefore present F.I.R. Was lodged.
3. In support of this bail application the learned counsel for applicant has submitted that there is no eye-witness in the matter. There is delay of about seven months, in lodging of F.I.R. Which has not been explained by the prosecution. He further says that no recovery whatsoever has been effected from the applicant. He says that none of the prosecution witnesses has said a word against the present applicant but applicant is behind the bars since more than fourteen months.
Learned counsel says that, appliciant be enlarged on bail.
4. On the other hand, learned D.P.-G. Has formally opposed the grant of bail as applicant is booked in a murder case. I.O. Present in Court says that complainant after lodging the F.I.R. Had gone to Saudi Arabia and his statement has not been recorded by the police.
5. I have heard the learned counsel for the parties and have gone through the record of the case.
6. Since the incident is unseen there is no material available on record which connects the present applicant with the commission of offence. No recovery whatsoever has been effected from the applicant. There is inordinate delay in lodging of F.I.R. Which as not been explained. Even the statement of complainant has not been recorded due to his absence. Except the allegation in the FM that present applicant has threatened the brother of complainant about fifteen to twenty days earlier that he will be killed but there is no material available with the prosecution to substantiate such allegation in the F.I.R. In the circumstances this case requires further enquiry in terms of subsection (2) of section 497, Cr.P.C. Accordingly, the applicant is admitted to bail on his furnishing solvent surety in the sum of Rs.100,000 (Rupees one hundred thousand) with P.R. Bond in the like amount to the satisfaction of learned trial Court.
7. The observations made hereinabove are tentative in nature and learned trial Court shall decide the main case on the material available and in accordance with law.