GHULAM HUSSAIN vs The STATE
This matter concerns a post-arrest bail application filed by the applicant, Ghulam Hussain, who was charged under Section 302/34 of the Pakistan Penal Code 1860. The core legal question was whether the applicant, who was alleged to be armed with a hatchet but did not perform any overt act during the commission of the murder, was entitled to bail given the circumstances of the case. The Court held that the applicant was entitled to bail, reasoning that while the applicant was named in the F.I.R., no specific overt act was attributed to him, and the weapon he allegedly carried was not used. Furthermore, the Court noted the presence of admitted enmity between the parties, the lack of independent witnesses regarding the arrest, and the fact that the applicant had been incarcerated for over a year. The key principle laid down is that where an accused is not assigned a specific overt act in a murder case and there is evidence of enmity, the case warrants further inquiry, justifying the grant of bail.
- Is an accused entitled to bail when the F.I.R. attributes no overt act to them despite being present at the crime scene?
- Does the existence of admitted enmity between parties constitute a ground for further inquiry in a bail application?
- Can bail be granted where the prosecution fails to associate independent witnesses with the arrest of the accused?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
' AFTAB AHMED GORAR, J.---Applicant Ghulam Hussain seeks post arrest bail in case registered under section 302/34, P.P.C. The brief facts of the prosecution case are that on 20-10-2011, complainant and his brother Mohammad Anwar Jamali were having tea at a Hotel when at about 8-30 a.m., three accused namely Taj Mohammad having Gun, Ghulam Hussain (present applicant) and Imam Dino, both having hatchets came. Out of them accused Taj Mohammad alias Tajoo haklaled the complainant party that he will kill them to which Mohammad Anwer replied why he will be killed, to which accused Taj Mohammad made straight fire which hit at the left side chest of Mohammad Anwer, who fallen down and blood was oozing. The remaining accused fled away. The injured then died instantaneously.
2. Learned counsel submits that applicant /accused is quite innocent and has been falsely implicated in this case due to enmity. He submits that from the tentative assessment of material collected by prosecution the case of applicant/accused need further inquiry. He submits that ingredients of the offence under section 302, P.P.C. Are missing. The alleged offence of the accused is yet to be determined. That all the P. Ws. Are related inter se and are interested and inimical to the applicant/ accused, hence false implication of applicant cannot be ruled out. He submits the allegation against the applicant as per F.I.R are that he was having hatchet at the time of incident but no overt act has been assigned to him, therefore, he prayed for the bail. In support of his contentions he placed reliance on case-law reported as Mumtaz Hussain and 5 others v. The State 1996 SCMR 1126.
3. On the other hand learned A.P.G., as also complainant who is present in Court have opposed the bail application on the ground that name of applicant is clearly mentioned in the F.I.R. The gun recovered from the possession of co-accused belongs to present applicant/accused. He further submits that P. Ws. Have supported the version of complainant.
4. Heard learned counsel for the parties and perused material available on record. No doubt name of applicant/accused transpires in the F.I.R, but the role assigned to applicant/accused is that at the time of incident he was armed with hatchet but the same was not used in the commission of crime. The allegation against the present applicant/ accused is that he was having hatchet in his hand when co-accused Taj Mohammad made straight fire upon the deceased when present applicant/ accused Ghulam Hussain and Imam Dino fled away from the scene of offence.
Applicant/accused was arrested from a Bus stop but no independent witness has been associated as a mashir of arrest. Applicant was arrested after three days of lodging of F.I.R and he has remained in jail for a period of more than a year. There is admitted enmity between the complainant party and accused Taj Muhammad and others, therefore, false implication of applicant/accused cannot be ruled out.
5. In view of the above facts and circumstances and looking to the dictum laid down by the Hon'ble Supreme Court in case of Mumtaz Hussain and 5 others (supra), no sufficient ground appears for holding at this stage that the applicant has committed an offence punishable with death or imprisonment for life.
6. The result of above discussion is that applicant/accused has been able to make out a case for bail, therefore, he is admitted to bail subject to furnishing solvent surety in the sum of Rs,300,000 (Rupees Three Lac) with PR bond in the like amount to the satisfaction of trial Court.
7. Above are the reasons of my short order passed in Court today i,e, 22-11-2012.