ABDUL REHMAN vs The STATE
This matter concerns a post-arrest bail application filed by the applicant, Abdul Rehman, who was charged under sections 302 and 34 of the Pakistan Penal Code 1860 for his alleged involvement in a murder case. The core legal question was whether the applicant, who was not directly implicated in the commission of the offence by a key prosecution witness in a statement recorded under section 164 of the Code of Criminal Procedure 1898, was entitled to bail pending trial. The court examined the evidentiary record, noting that the witness, while implicating absconding co-accused, did not attribute any specific role or presence to the applicant during the actual commission of the murder. Relying on the principle that bail should be granted when the prosecution's case against an accused requires further inquiry, the court held that the applicant's case fell within the scope of further investigation. Consequently, the court allowed the bail application, directing the applicant's release upon furnishing solvent surety, emphasizing that these findings were tentative and should not prejudice the trial court's proceedings.
- Is an accused entitled to bail when the primary prosecution witness does not implicate them in the commission of the offence?
- Does the absence of an accused from the scene of the crime, coupled with a lack of specific role attribution, constitute grounds for further inquiry under section 497 of the Code of Criminal Procedure 1898?
- Can bail be granted when the prosecution's evidence against an accused is insufficient to establish reasonable grounds for believing them guilty of the offence?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 164, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
- Article 185(3), Constitution of Pakistan 1973
ORDER
1. ' SADIQ HUSSAIN BHATTI, J.---Applicant Abdul Rehman Agha Pathan has sought bail in Crime No,86 of 2011 registered at Police Station SITE Hyderabad, under sections 302 and 34, P.P.C.
2. ' The brief facts of the case are that complainant Muhammad Nawaz lodged the F.I.R. At Police Station Shah Latif Town District Karachi Malir regarding abduction of his son Muhammad Bachal by accused Muhammad Murad and others. He also stated that Muhammad Bachal was taken to Hyderabad by accused Murad, as he was told by the abductee on mobile phone when he last contacted. Complainant arrived in Hyderabad and searched his son Bachal. Police raided the house of applicant/accused Abdul Rehman, but they could not find the accused persons nor the abductee Bachal. Thereafter, on 13-11-2011, beheaded dead body of a person was found in a dirty water pond near Zeal Pak Cement Factory and the complainant identified him to be the dead body of his son Bachal by seeing the Taweez and Tattoo on his arm. Thereafter, complainant lodged the F.I.R. At SITE Police Station against accused Muhammad Murad, Ali Murad, Dil Murad, Gulal, Abdul Rehman (applicant), Abdul Jabbar and Gul Mir.
3. ' During the course of investigation' applicant was arrested. Subsequently, a bail application was moved on his behalf before learned Sessions Judge, Hyderabad, which was declined on 22-12-2011, hence the present bail application.
4. ' Learned Counsel for the applicant contended that the applicant has been involved in this case with mala fide intention. There is delay in lodging F.I.R. For which no plausible explanation is given by the complainant. The alleged offence look place in thickly-populated area but the complainant has failed to associate any independent witness of the occurrence. No role has been attributed to present applicant. It is further contended that on 16-11-2011 the 'eye-witness namely Osama recorded his statement under section 164, Cr.P.C. Before Civil Judge and Judicial Magistrate-IX, Hyderabad in which he exonerated the present applicant. The complainant has inimical terms with absconding, accused persons and falsely involved the applicant due to friendship with absconding accused namely Abdul Jabbar. That present applicant is also peshimam. He lastly prayed for bail.
5. ' Learned A.P.-G. Vehemently opposed the bail to the applicant.
6. ' Complainant Muhammad Nawaz lodged the F.I.R. On 9-11-2011 at Police Station Shah Latif Town regarding the abduction and taking away of his son Muhammad Bachal to Hyderabad by absconding accused Murad and others. Thereafter on 10-11-2011 P.W._ Osama, who is his nephew, came and informed him that Dil Murad and others have stayed in the house of accused Abdul Rehman at Hyderabad. On hearing this information, his son Muhammad Qasim along with the police of Shah Latif Town Karachi conducted the search in the house of Abdul Rehman at Nara Jail Colony, but the culprits were not present so also abductee Bachal. The complainant thereafter continuously searched the whereabouts of his son, and finally on 13-11-2011 at about 11-00 a.m. He saw dead body of a person without head in a dirty water pond at Zeal Pak Cement Factory near Labour Colony. He immediately informed the Police of SITE Hyderabad. Police reached and took out the body to whom he recognized as his son Bachal through his "Taweez" and tattoo mark on his arm and thereafter he lodged the F.I.R. Against. Muhammad Murad Ali Murad, Dil Murad, Gulal, Abdul Rehman, Abdul Jabbar and Gul Mir at Police Station SITE Hyderabad. Thereafter, accused Abdul Rehman was arrested on 14-11-2011, since then he is in jail and rest of the accused are absconders.
7. During the course of investigation P.W. Osama, who first gave the information to Complainant about the presence of absconding accused persons to complainant, appeared before the Civil Judge and Judicial Magistrate-IX, Hyderabad, where his 164, Cr.P.C. Statement was recorded. In his statement, P.W. Osama has implicated all absconding accused persons and stated that he heard the cries of deceased Muhammad Bachal, on which he woke up, opened the window and found that all absconding-accused were causing injuries to Bachal and accused Ali Murad stabbed Bachal with churri. On seeing this, he shouted on which .Accused Ali Murad came out and slapped him sand asked the co-accused Abdul Jabbar that he may be taken to house of applicant/accused Abdul Rehman. Thereafter, he was taken to the house of Abdul Rehman, wherefrom accused Abdul Rehman also went along with Abdul Jabbar to their house. From the perusal of 164, Cr.P.C. Statement no where it is mentioned that accused Abdul Rehman was present or participated in committing the murder of deceased Muhammad Bachal, but his name was given by complainant as accomplice along with the absconding accused persons.
8. ' Now it is a question for consideration as to whether the present accused is involved or whether he has abetted the crime, as the above witness Osama has not implicated him in the commission of the offence. On this point I have gone through the case-law reported as PLD 1996 Supreme Court 241, wherein the High Court cancelled the bail granted to the accused by Additional Sessions Judge. The honourable Supreme Court of Pakistan converted the petition for leave to appeal into appeal and, admitted the accused on bail. I would like to reproduce the operative part as under:- S. 497--- Penal Code (XLV of 1860), S.302/109-- Constitution of Pakistan (1973), Art. 185(3)---Bail-- Accused was not present at the time of occurrence and was alleged to have instigated the principal accused in the presence of prosecution witnesses to eliminate the deceased one hour before the occurrence---Sessions Court had allowed bail to accused apparently on the ground that the evidence with regard to the allegations of conspiracy/abetment did not furnish reasonable ground for believing him guilty of abetment of the offence of murder---High Court while cancelling hail of accused had not even attended to the reasons given by the Sessions Court for granting him bail, much less to have found them as unfounded or fallacious---Action of Sessions Court in granting bail to accused was intra vires and on the facts completely justifiable- Petition for leave to appeal was consequently converted into appeal and the accused was admitted to bail."
9. In view of the above position and perusal of case-law, I am of the humble view that the case of the applicant requires further enquiry. Resultantly, bail application is allowed. The applicant be released on bail subject to furnishing solvent surety in the sum of Rs.200,000 (Two Lac) and P.R.
10. Bond in the like amount to the satisfaction of learned trial Court.
11. ' The observations made hereinabove are tentative in nature and the trial Court should not be influenced upon by any of them while proceeding with the trial.