ISHFAQ HUSSAIN vs The STATE and another
This matter concerns a petition for post-arrest bail filed by the accused, Ishfaq Hussain, in a case involving charges under sections 302, 109, and 34 of the Pakistan Penal Code 1860. The petitioner sought bail on the grounds that co-accused persons had been acquitted or granted bail, and argued that his absconsion did not preclude bail. The prosecution opposed the petition, highlighting that the incident was a broad-daylight occurrence, the petitioner was specifically nominated in the F.I.R., a fatal injury was attributed to him, and he had remained a fugitive for over five years. The Court held that the petitioner's case was distinguishable from the acquitted co-accused because specific, fatal injuries were attributed to him. Furthermore, the Court determined that the recovery of the weapon and the petitioner's prolonged absconsion provided sufficient material to connect him to the offence. Consequently, the Court ruled that the case did not warrant further inquiry under the prohibitory clause of section 497 of the Code of Criminal Procedure 1898 and dismissed the bail petition.
- Does the acquittal of co-accused persons automatically entitle the remaining accused to the concession of bail?
- Is prolonged absconsion a relevant factor in determining whether to grant post-arrest bail?
- Can the absence of a Forensic Science Laboratory report at the bail stage be a ground to disbelieve the prosecution's case?
- Does the attribution of a specific fatal injury distinguish an accused's case from co-accused persons who were acquitted?
- Section 302, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' RAUF AHMAD SHEIKH, J.---The petitioner seeks post-arrest bail in case F.I.R. No 400 of 2005, dated 6-5-2005, under sections 302/109/34, P.P.C., Police Station Chak Jhumra, District Faisalabad.
2. Briefly stated the prosecution version as set forth in the F.I.R. Recorded on the statement of Syed Azarn Hussain, complainant is that the petitioner along with his co-accused persons who were all armed with .30-bore pistols made an attack on Tariq Masood deceased, who was going towards his Hospital along with Mazhar Abbas P.W. Allegedly the petitioner made first fire which landed on the back of the deceased and thereafter, he and other co-accused persons made indiscriminate firing which hitting on different parts of the body of the deceased.
3. The learned counsel for the petitioner has contended that, the co-accused of the petitioner Ijaz Hussain has been granted bail by this Court whereas the remaining co-accused persons were acquitted so a reasonable doubt exists about the veracity of the witnesses and correctness of the allegations levelled by the prosecution against the petitioner so he is entitled to the concession of bail; that mere absconsion is not ipso facto sufficient to withhold the concession of bail as it a matter of common knowledge that people usually flee due to the fear of extra judicial action on the part of the police. In support of the contention raised reliance is placed 2009 PCr.LJ 1101.
4. The learned D.P.G. And the learned counsel for the complainant have vehemently opposed the petition by contending that it is a broad-daylight occurrence, which was immediately reported to the police; that the petitioner is specifically nominated in the F.I.R. And the fatal injury is attributed to him so his case is distinguished from the case of co-accused Ijaz Hussain and other co-accused persons, who have been acquitted; that the petitioner remained fugitive from law for the period of more than five years and that the weapon of offence has been recovered at the instance of the petitioner.
5. The occurrence took place at about 9-00 a.m. And was promptly reported to the police. It is a broad-daylight occurrence and the questions of deliberation or consultation therefore, prima facie stands ruled out. P. Ws. Mazhar Abbas and Muhammad Sneed in their statements under section 161 Cr.P.C. Have fully supported the prosecution version regarding causing of injury on the back of the deceased, which is shown to be injury No,4 in the postmortem report and was declared fatal so the case against the petitioner is distinguished from the case against the co-accused persons who were not attributed any specific injury. The weapon of offence has been recovered from the petitioner and non-availability of the report of the Forensic Science Laboratory, which is only a corroborative piece of evidence, is no ground to disbelieve the prosecution version at this stage. By no stretch of imagination, it can be held that the witnesses, whose evidence was not sufficient against the co accused persons, would also be not believed against the petitioner after the trial.
Prima facie sufficient material is available on the record to connect the petitioner with the commission of the offence falling within the prohibitory clause of section 497, Cr,P,C, No ground is available to hold that the case against the petitioner needs further probe and inquiry within the meanings of section 497(2), Cr.P.C. The above material coupled with wilful absconsion for a period of more than five years disentitles him from the concession of bail. The bail petition is without merits and the same is hereby dismissed.