JUMA KHAN alias SAJID and another vs The STATE
This matter arises from a post-arrest bail application filed by the applicants, Juma Khan alias Sajid and Ashique, seeking bail in Crime No. 158 of 2011 registered at Police Station Thariri Mohabbat under sections 302, 337-H(2), 504, 148, and 149 of the Pakistan Penal Code 1860. The core legal question concerns whether the applicants are entitled to post-arrest bail in light of an unexplained five-day delay in lodging the First Information Report, general attribution of fire shots without specific fatal injury assignment, lack of recovery of incriminating evidence, and the statutory period already spent in custody. The Sindh High Court held that the cumulative effect of the delayed FIR, absence of specific attribution for the fatal blow, lack of recoveries, and prolonged incarceration rendered the prosecution's case one of further inquiry. The court laid down the principle that an inordinate delay in FIR registration, coupled with generalized firearm allegations and absence of incriminating recoveries, makes out a case for further inquiry under Section 497(2) of the Code of Criminal Procedure 1898, justifying the grant of post-arrest bail.
- Does an unexplained five-day delay in lodging the FIR make the prosecution case doubtful for the purpose of bail?
- Whether general assignment of firearm injuries to multiple co-accused without specifying the fatal shot warrants further inquiry under criminal jurisprudence?
- Does the absence of incriminating recoveries from the possession of accused persons support the grant of post-arrest bail?
- Section 302, Pakistan Penal Code 1860
- Section 337-H (2), Pakistan Penal Code 1860
- Section 504, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
ORDER
' AFTAB AHMED GORAR, J.---Through this bail application, the applicants Juma Khan alias Sajid and Ashique seek post arrest bail in Crime No,158 of 2011, of Police Station Thariri Mohabbat, for offence punishable under sections 302, 337-H (2), 504, 148, 149 P.P.C.
2. As per case of prosecution as setout in the F.I.R lodged by complainant Arz Muhammad Khoso with Police Station Thariri Mohabbat on 24-11-2011, the applicants Juma Khan alias Sajid, Ashique and co-accused Nazir are alleged to have fired at brother of complainant, namely, Niaz Hussain, resulting into his death.
3. Learned counsel for the applicants contended that, applicants are innocent and they have falsely been implicated in the case by complainant due to admitted enmity. Learned counsel further contended that F.I.R is delayed for five days without furnishing plausible explanation. Per learned counsel three accused fired at deceased, and it would he determined at the time of trial that who caused fatal shot to deceased. Learned counsel further contended that the alleged incident is said to have taken place in odd hours of night and identification made by party was on bulb light, which is highly doubtful and could not he relied upon. Learned counsel submitted that the motive for the alleged offence as setout in the F.I.R., is not so strong that one can commit murder of anybody.
4. On the other hand, learned counsel appearing for the State opposed grant of bail to the applicants, on the ground that they are nominated in the F.I.R. With specific role of causing fire shots upon deceased.
5. I have considered the submissions made by learned counsel for the parties and gone through the material available on record. Admittedly, there is delay of five days in lodging the F.I.R., however, explanation furnished for such inordinate delay is not satisfactory; though contents of F.I.R shows that the complainant informed the police about the incident on the very morning of day of incident and that the police had also come to hospital, but even then the complainant did not lodge F.I.R, and remained silent for about five days, and after lapse of five days he went to police station and registered case. This single circumstance makes the case of prosecution doubtful. None of the applicants have been assigned specific injury, both of them including co-accused Nazir have allegedly fired upon deceased; in the circumstances it would be determined at the trial that who's shot become fatal. Perusal of mashirnama of place of occurrence does not show recovery of any empty or blood stained earth; and after arrest of the applicants nothing incriminating article is alleged to have been recovered from their possession connecting them with the commission of offence. Statements of prosecution witnesses under section 161, Cr.P.C. Have been recorded after two days of recording F.I.R, which is also fatal to the prosecution. The applicants are in jail since last about 1-1/2 years.
6. In view of the above circumstances, the applicants have been able to make out a case for grant of bail. Accordingly, vide short order dated 12-6-2013, the applicants were granted bail on furnishing their solvent surety each in the sum of Rs,300,000, and P.R bond in the like amount to the satisfaction of learned trial Court, and these are the reasons for the same.