BASHIR AHMED vs STATE and another
Through this petition under Section 497 of the Code of Criminal Procedure 1898, the petitioner Bashir Ahmad sought post-arrest bail in case FIR No. 270 dated 30.05.2015 registered under Sections 302, 109, and 34 of the Pakistan Penal Code 1860 at Police Station Alpa, District Multan. The core legal questions involved whether the petitioner's complicity warranted further inquiry under Section 497(2) and whether he was entitled to bail on the statutory ground of delay in the conclusion of the trial. The court held that the uncertainty surrounding the cause of death, the nature of recoveries, and the circumstances of the case brought the matter within the scope of further inquiry. Furthermore, the court held that the continued incarceration of the accused for over two and a half years without the conclusion of the trial, through no fault of the accused, entitled him to bail on the statutory ground of delay. The petition was consequently allowed, and the petitioner was admitted to bail subject to furnishing surety bonds.
- Whether the complicity of an accused in a murder case requires further probe and inquiry under Section 497(2) of the Code of Criminal Procedure 1898 when the medical and forensic evidence regarding the cause of death remains uncertain?
- Does an unexplained delay of more than two and a half years in the conclusion of a trial entitle an accused person to post-arrest bail on statutory grounds?
- Can bail be granted to an accused person even at an advance stage of the trial if he is otherwise entitled to the relief on merits and on statutory grounds?
- Section 497, Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
Through this petitioner under Section 497, Cr.P.C., petitioner Bashir Ahmad has sought post arrest bail in case FIR No, 270 dated 30.05.2015, in respect of offences under Sections 302, 109 & 34, PPC; registered at Police Station, Alpa District Multan.
2. The allegation against the petitioner, as contained in the crime report, is that on 29.05.2015 at Maghrib time, he along with his co.accused Shaukat alias Kalu, while armed with clubs, launched murderous assault upon Khadim Hussain, father of the complainant giving club blows on different parts of his body. Khadim Hussain succumbed to the injuries on the same day. Hence, this case was registered.
3. I have heard learned counsel for the petitioner, learned Deputy Prosecutor General appearing for the State assisted by learned counsel for the complainant and have perused the record with their able assistance.
4. It would not be out of place to mention here that this is the 2nd petition on the subject, earlier Crl.
Misc. No, 4784-B of 2016 was dismissed for non-prosecution vide order dated 25.10.2016. The petitioner has sought his release on bail on merits as well as on the statutory ground of delay in conclusion of the trial.
5. The occurrence in issue had taken place on 29.05.2015, which was reported to the police on the next day on 30.05.2015 without any plausible explanation. The petitioner was saddled with the responsibility of giving club blows at the head, left arm, left shoulder and left fore-arm of deceased Khadim Hussain whereas co-accused Shaukat alias Kalu had allegedly given a club blow at his left side of neck. The post-mortem examination report shows three injuries on the dead body and the opinion with regard to the cause of death remained uncertain even after receiving the report of Punjab Forensic Science Agency. The petitioner was arrested in this case on 15.07.2015 after 11/2 months of the occurrence and during investigation, the recovery of a club is shown to have been effected at his instance, which was neither blood stained nor tainted one and, thus, its evidentiary value will be determined by the learned trial Court after recording the evidence. The complicity of the petitioner, in the commending circumstances, requires further probe and inquiry into his guilt under sub-section (2) of Section 497, Cr,P.C.
6. In compliance of this Court's order dated 13.11.2017, learned trial Court has submitted a report dated 21.11.2017, stating that the challan was submitted for trial on 02.03.2016 wherein after availing a number of opportunities, the prosecution got recorded the examination-in-chief of three witnesses but they did not turn up for the purpose of cross-examination on two dates of hearing.
Thereafter, the complainant filed a private complaint on 21.04.2017 with the delay of about two years of the occurrence wherein, after framing of the charge on 29.06.2017, the case remained adjourned due to the non-availability of the prosecution witnesses and once on account of non- availability of the learned defence counsel i,e, 28.10.2017. Now the case is being fixed for recording the statements of prosecution witnesses. Learned counsel for the complainant submits that the trial is at the advance stage as only the statement of Investigating Officer is left to be recorded. The grant of bail to an accused, even at an advance stage of the trial, has no bar and the accused cannot be kept in the incarceration even for a moment, if he is otherwise entitled to the relief claimed for because the liberty is a fundamental right of every citizen, which cannot be curtailed merely on the ground of technicalities. The petitioner is behind the bars for a continuous period of more than 21/2 years from the date of his arrest i,e, 15.07.2015. The delay of more than 21/2 years by itself is a sufficient and tenable ground to release the petitioner on bail. Considering the above noted facts and circumstances of the case, besides merits, the petitioner has earned the right of his release on post arrest bail on the ground of statutory delay in the conclusion of trial.
In view of what has been discussed above, the petition in hand is allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs, 200,000/- (rupees two lac) with two sureties in the like amount to the satisfaction of the trial Court.