HADAY KHAN vs STATE
This matter arises from a criminal bail application filed by the applicant seeking post-arrest bail in a murder case registered under Section 302 read with Section 34 of the Pakistan Penal Code. The core legal question was whether the applicant was entitled to post-arrest bail considering the tentative assessment of the record, the completion of investigation, and the circumstances surrounding the case including absconsion. The Balochistan High Court held that the applicant successfully made out a case for further inquiry upon a tentative assessment of the record, and that bail could not be withheld solely due to long absconsion when the guilt or innocence of the accused is yet to be determined by the trial court after recording evidence. The court laid down the principle that bail may be granted where the case falls within the ambit of further inquiry under Section 497(2) of the Code of Criminal Procedure, subject to furnishing adequate sureties.
- Whether long absconsion alone is sufficient to withhold the concession of bail when a case of further inquiry is made out?
- Does the absence of a specific role assigned to the accused in the FIR warrant the grant of post-arrest bail?
- Whether bail should be granted when the guilt or innocence of the accused is yet to be determined by the trial court after recording evidence?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
This order disposes of Criminal Bail Application No, 139 of 2018, whereby the applicant, Haday Khan son of Allah Yar, is seeking bail in FIR No. 27 of 1996 dated 6th August 1996, Levies Station, Tamboo under Section 302 read with Section 34, PPC.
2. Facts of the case are that on 6th August 1996 lodged FIR No. 27 of 1996 on the complaint of Elahi Bakhsh under above mentioned Sections at Levies Station Tamboo to the effect that at the night of incident his uncle, namely; Rindo son of Kheri was sleeping in his home while accused Kamal, Khair Jan, Shah Nawaz, Tangwani son of Zangi, Haday son of Allay Yar and Bari son of Hotan by Caste Shalwani Bugti committed the murder of his uncle by means of firing, the motive behind the incident was stated that there is old enmity .
3. After usual investigation, challan was submitted in the trial Court and the trial was commenced. In the meantime, the applicant (accused) filed an application for grant of post arrest bail the learned Additional Sessions Judge, Naseerabad at Dera Murad Jamali (hereinafter referred 'as, "the trial Court"), but the same was rejected, vide order dated 16th October 2018. Whereafter , the instant application has been filed.
4. Learned counsel for the accused-applicant contended that the accused-applicant is innocent and has not committed any offence whatsoever in nature; that in the instant case the main accused has been acquitted of the charge on the basis of compromise; that accused-applicant was not aware about the FIR and his absconsion was neither deliberate nor intentional, when he came to know about the FIR lodged against him he has surrendered himself at the mercy of the Court; that no specific role has been assigned to the accused-applicant and he has been dragged in the instant case just to harass him; that neither there is any eye-witness that accused-applicant had killed by the fire of the applicant nor any direct or indirect evidence is available against him with the commission of alleged offence even since 1996; hence the case of applicant (accused) falls within the ambit of further inquiry; that investigation in the matter has been completed and applican t (accused) were remanded to judicial custody , meaning thereby that he is not required for the purpose of investigation or probe as such, the applicant (accused) is entitled for concession of bail.
5. Learned Additional Prosecutor General stated that the applicant-accused is involved in heinous crime of heinous murder , thus the alleged offences are not only non-bailable, but also carries punishment for death or life imprisonment; that sufficient incriminatory evidence is available on record connec ting him with the commission of crime, thus he is not entitled for grant of bail.
6. Heard the learned counsel for the parties and with their valuable assistance gone through the record. Besides, after conducting investigation in the matte r, challan of the case has been submitted in the trial Court, the applicant (accused) has been remanded to judicial custody , while after taking cognizance the trial has commenced with the trial of the case. The guilt or innocence of the applicant is yet to determine by the trial Court after recording evidence, hence due to long absconsion concession of bail cannot be withheld.
7. Perusing the record tentatively , the counsel for the applicant (accused) has successfully made out a case of further inquiry , therefor , 1 am inclined to accept the instant application and grant bail to the applicant (accused) subject to furnishing surety in the sum of Rs, 200,000/- (Rupees two Hundred Thousand) with P.R. bond of the like amount to the -satisfaction of the trial Court or Deputy Registrar of this Court.
The observations made hereinabove are tentative in nature and same shall not influence the merits of the case.