Malik Qurban Ali son of Qurban Ali vs State
This is a criminal bail application arising from a case registered under section 324, PPC, later augmented with sections 336-B, 109, 34, PPC read with section 7 of the Anti-Terrorism Act, 1997, regarding an acid-throwing incident. The core legal question was whether the applicant was entitled to post-arrest bail when his name was absent from the FIR and initial statements, and when the injured complainant herself filed affidavits and made statements before the court exonerating the applicant and expressing no objection to his release. The Sindh High Court held that the case against the applicant called for further inquiry within the meaning of section 497(2), Code of Criminal Procedure 1898, given the lack of incriminating material, the omission of his name from the initial police report, and the categorical exoneration by the victim. The court laid down the principle that where an injured complainant voluntarily exonerates an accused person through affidavits and statements before the court, and no direct incriminating evidence connects the accused to the crime at the tentative assessment stage, the accused makes out a strong case for further inquiry and is entitled to post-arrest bail.
- Whether an accused is entitled to post-arrest bail when the injured complainant exonerates him through affidavits and statements before the court?
- Does the absence of an accused person's name from the initial first information report constitute a ground for further inquiry under criminal procedure?
- Whether bail can be granted when no direct incriminating material connects the accused to the alleged offense during the investigation stage?
- Section 324, Pakistan Penal Code 1860
- Section 336-B, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 7, Anti-Terrorism Act 1997
- Section 161, Code of Criminal Procedure 1898
- Section 164, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
NAIMATULLAH PHULPOTO, J.--- Applicant/accused Malik Qurban Ali seeks bail in Crime No.301/2015, registered at Police Station Shah Latif Town, Malir, Karachi, under section 324, PPC.
2. Brief facts of the prosecution case as disclosed in the F.I.R. are that complainant Miss Zainab Iqbal daughter of Muhammad Iqbal, aged about 24 years, lodged report on 15.07.2015, alleging therein that she was serving as Airhostess in PIA. On the day of incident, applicant/accused Malik Qurban Ali, her friend, telephoned her to remain ready till 08:00 p.m. as they were going for shopping. After sometime, applicant/accused Malik Qurban Ali sent message to the complainant that he was waiting for her. At about 08:15 p.m. complainant came out of the house and was proceeding to the car of Malik Qurban Ali, who was waiting for her in the street. It is stated that suddenly a young boy wearing black colour Shalwar and Qameez appeared there and threw acid upon the face of the complainant. She felt pain and started crying. It is alleged that family of the complainant came in the street and complainant was taken by applicant/accused Malik Qurban Ali to the hospital. Thereafter, case was registered against unknown person under section 324, PPC.
3. During investigation, 161 Cr.PC statement of Miss Zainab Iqbal was recorded on 16.07.2015 in which applicant Malik Qurban Ali was not implicated as accused by her and she stated that some unknown person had thrown acid at her face. 161, Cr.PC statement of her father Muhammad Iqbal was also recorded, he has also not implicated applicant Malik Qurban Ali in the commission of offence. One Muhammad Jameel, Shopkeeper was examined by the IO and he has stated in his 161, Cr.PC statement that co-accused Abdul Raheem had purchased acid from his shop. IO recorded statement of applicant/accused Malik Qurban Ali under section 161, Cr.PC. Another investigation officer recorded 161, Cr.PC statement of Miss Zainab Iqbal on 05.08.2015. Statement of PW Riaz Ahmed was also recorded under section 161 and 164, Cr.PC, in which he has stated that he had seen applicant/accused while sitting in his car where young boy appeared and threw acid upon the face of victim girl. Thereafter, applicant/accused was arrested on 28.07.2015. After usual investigation, interim challan was submitted against accused Malik Qurban Ali s/o Qurban Ali, Danish S/o Ashraf Ali, Ashraf S/o Muhammad Umar and Abdul Raheem alias Asif S/o Akbar Ali, under sections 324, 336-B, 109, 34, PPC before Ilaqa Magistrate, P.S. Shah Latif Town, Malir, Karachi.
Thereafter, case was transferred to learned Judge, Anti-Terrorism Court-VIII, Karachi.
4. Bail application was moved on behalf of applicant/accused Malik Qurban Ali, for offences under sections 324, 336-B, 109, 34, PPC read with section 7 of the Anti-Terrorism Act, 1997, the same was rejected by learned trial Court vide order dated 30.12.2015. Thereafter, applicant/accused has approached this Court.
5. Mr. Mehmood Alam Rizvi, learned counsel for applicant/accused Malik Qurban Ali, contended that name of applicant/accused did not transpire in the F.I.R. and in 161, Cr.PC statement of victim girl. He has argued that applicant/accused has been implicated by P.W. Riaz Ahmed but said Riaz Ahmed had not seen the applicant/accused while throwing acid upon the face of the complainant.
Mr. Rizvi argued that complainant and her father had sworn affidavits before the trial Court in which they had exonerated the applicant/accused from the commission of offence. He has also invited our attention to the affidavit filed by complainant Miss Zainab Iqbal before this Court today in which she has exonerated the applicant. Lastly, it is submitted that case against applicant/accused requires further inquiry. In support of his contentions he has relied upon the cases of MUHAMMAD NAWAZ alias NAJJA versus THE STATE (1991 SCM R 111), GHULAM QADIR and 2 others versus THE STATE (2008 SCM R 1221), ANSAR IJAZ versus THE STATE (2015 YLR 1954).
6. Mr. Muhammad Iqbal Awan, learned Assistant Prosecutor General Sindh, argued that applicant/accused has been implicated by PW Riaz Ahmed during investigation, as such, he has opposed the bail application.
7. We have carefully heard the learned counsel for the parties as well as complainant Miss Zainab Iqbal, who voluntarily appeared before this Court.
8. Record reflects that F.I.R. was lodged on 16.07.2015 against unknown person. Statements of Miss Zainab Iqbal and her father Muhammad Iqbal were also recorded by the investigation officer during investigation, in which applicant/accused was not named as accused. Complainant has filed affidavit before the trial Court in which she has exonerated the applicant/accused from the commission of the offence. Complainant has also filed affidavit before this Court and appeared before us, she categorically stated that applicant/accused Malik Qurban Ali is not involved in the commission of offence. As regards to 161, Cr.PC statement of PW Riaz Ahmed, we have perused his statement, he has not specifically mentioned in his statement that he had seen accused Malik Qurban Ali while throwing acid upon the complainant. Apparently, no incriminating material has been collected against the applicant/accused during investigation to connect him in this case.
Moreover, applicant/accused has been exonerated by the complainant, who is injured and recorded no objection for grant of bail to the applicant/accused. Rightly reliance has been placed upon the cases of MUHAMMAD NAWAZ alias NAJJA v. THE STATE (1991 SCM R 111), GHULAM QADIR & others v. THE STATE (2008 SCMR 1221), ANSAR IJAZ versus THE STATE (2015 YLR 1954). In the case of MUHAMMAD NAWAZ alias NAJJA versus THE STATE (1991 SCM R 111) Honourable Supreme Court of Pakistan has observed as under:- "In pursuance of the notice dated 13 3 1990 to the Investigating Officer, Police Station Qila Subha Singh, District Sialkot directing him to produce Rehmat Ali and Sabir Hussain P.Ws. before this Court, the Police Officer has appeared today alongwith the above named two P.Ws.
The P.Ws. have been questioned by us and they supported the averments made in their affidavits to the effect that the present petitioner Muhammad Nawaz alias Najja is not implicated in the occurrence.
Mr. A.S. Hashmi, learned counsel for the State, was unable to oppose the prayer for bail, in view of the above statements.
This petition is converted into an appeal. The petitioner is allowed bail in the sum of Rs.30,000 with the two sureties in the like amount to the satisfaction of the A.C. Narowal."
9. Prima facie, there are no reasonable grounds to believe that the applicant/accused has committed the alleged offence but there are sufficient grounds for further inquiry into the guilt of the applicant/accused. Therefore, concession of bail is extended to applicant/accused Malik Qurban Ali son of Qurban Ali, subject to his furnishing solvent surety in the sum of Rs.200,000/- (Rupees Two Hundred Thousand) and P.R. bond in the like amount to the satisfaction of the trial Court.
10. Needless to mention here that above observations are tentative in nature and the trial Court shall not be influenced by the same while the deciding the case of the applicant/accused on merits.