LALA JAN vs NURAB KHAN and anothers
This petition for post-arrest bail arises from an F.I.R. registered under sections 302, 324, and 34 of the Pakistan Penal Code 1860, involving allegations of murder and attempted murder. The petitioner sought bail, contending that the prosecution's case relied on a belated identification by the complainant after significant delay, lacking any test identification parade, and that co-accused had already been acquitted on the same evidence. The State opposed the bail, primarily citing the petitioner's long-standing abscondence. The court examined the record and found that the complainant's delayed implication of the petitioner, following the withdrawal of charges against other suspects, appeared to be the result of consultation and deliberation. Furthermore, the court noted the absence of an identification parade and the acquittal of co-accused. The court held that while abscondence is a factor, it does not preclude the grant of bail when the merits of the case strongly favor the accused. Consequently, the court allowed the petition, granting bail to the petitioner, establishing the principle that mere abscondence does not bar bail if the accused demonstrates a strong case on merits.
- Does long-standing abscondence of an accused automatically disentitle them to the concession of bail?
- Can a belated identification of an accused by a complainant, made after significant delay and consultation, support a denial of bail?
- Is bail permissible when co-accused facing the same evidence have already been acquitted by the trial court?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 164, Code of Criminal Procedure 1898
' ASSADULLAH KHAN CHAMKANI, J.---Petitioner Lala Jan is seeking his release on bail in case F.I.R.
No,384 dated 30-12-1998 registered for offence under sections 302/324/34, P.P.C. At Police Station Usterzai District Kohat.
2. The complainant Nurab Khan reported the matter to the police, in terms, that he loaded the luggage and sat passengers in Pick Up bearing Registration No, PRO/8496 and started proceeding towards Orakzai Agency and when reached Jungle Rest House, a Suzuki color brown after overtaking, two unknown persons sitting therein opened fire with fire-arm at us as a result Qasam Gul was hit and died on the spot while Muhammad Shafiq Khan and Fazle Akbar Khan sustained injuries, hence the case was registered against unknown accused.
3. Learned counsel for petitioner contended that' there is no ocular or circumstantial evidence regarding the complicity of the petitioner in the instant case. Further submitted that the petitioner has been charged in the crime due to belated statement of complainant, which is the result of consultation and deliberation. He was of the view that the ocular story is belied by medical version, the site plan and other circumstances and that the incident has not been occurred in the manner, time and place as portrayed 'by the complainant. He maintained that the co-accused has been acquitted by learned trial Court, therefore, on.The same set of evidence the petitioner is also likely to get acquittal after commence of trial and that the petitioner was minor at the time of alleged occurrence, hence deserves special treatment and that the petitioner had not absconded as since his childhood he was at Karachi for earning his livelihood and being minor at the tragic time, possibility of avoiding arrest due to fear, tender age and false implication in the case cannot be ruled out, therefore, in this view of the matter the petitioner has made out a case for further inquiry.
4. Learned State counsel while opposing this petition contended that the petitioner has been charged for commission of offence by the complainant in a statement recorded under section 164, Cr.P.C., which is corroborated by evidence, moresb, when he remained fugitive from law for a considerable time, therefore, on the available record the accused is not entitled to the concession of bail.
' Arguments heard. Record perused.
5. The record reveals that in the F.I.R. The complainant Nurab Khan son of Habib Khan charged two unknown persons for murdering one person Qasam Gul and injuring two others, namely, Muhammad Shafiq Khan and Fazle Akbar Khan. The record is further suggestive of the fact that the local police arrested one Tor Gul and Rashid Hussain in the instant case, however, on 15-1-1999 P.W.
Gohar Ali appeared before the Illaqa Magistrate and disclosed that accused/petitioner while accompanying another boy -aged 17/18 years was armed with kalashnikov and A pistol, respectively opened firing upon us. In the light of said statement, on 10-2-1999 the complainant withdrew his charges from accused Tor Gul, Rashid Hussain and Abid Hussain and charged the present petitioner alongwith two others for the commission of alleged offence. Belated statement of the complainant after a long delay in which he charged the petitioner along with two others loses its authenticity being charge after consultation and deliberation. Moreover, no test of identification parade was conducted by the prosecution through the complainant and other P. Ws.
To prove the belated charge. The learned State counsel when confronted with such situation, half heartedly argued the case but his main stress was on abscondance of the accused for about 14 years. Additionally, the co-accused of the petitioner, namely, Shah khan appeared before the court and faced trial and at the conclusion he was acquitted.
6. The main stress from the prosecution side and complainant counsel was regarding the long absconcion of the accused but it is well-settled principle of law that. Bail can be granted if an accused has a good case for bail on merits and mere absconcioy would not come in the way while granting bail, hence this court is of the view that the learned trial Court has not appreciated the facts and circumstances of the case in its true perspective while declining bail to the petitioner.
' For what has been stated above, this. Petition is allowed and the petitioner is granted bail in the sum of Rs,4,00,000 with two sureties each in the like amount to the satisfaction of learned Illaqa/Duty Magistrate, who shall ensure that the sureties are local and men of means.
' Above are the detailed reasons for the short order of even date.
Cited by 1 case
- EJAZ AHMAD vs The STATE 2019 MLD 507