MUHAMMAD SALEEM Versus THE STATE
This is a post-arrest bail application filed by applicant Muhammad Saleem, who is facing trial for murder under section 302 of the Pakistan Penal Code 1860 in Crime No. 222 of 1996. The core legal question concerns whether the applicant is entitled to the discretionary relief of bail in view of the incriminating statements of prosecution witnesses, the recovery of the deceased's body from the applicant's clinic under newly constructed cement, and his prolonged abscondence for over five years. The Sindh High Court dismissed the bail application, holding that the material brought on record tentatively establishes a prima facie case against the applicant, and noted that delay in the First Information Report does not per se destroy the prosecution's case at this stage, while abscondence further disentitles the applicant to bail. The key principle laid down is that where ocular and circumstantial evidence, including recovery of a dead body from the accused's premises and prolonged abscondence, prima facie connect the accused to the crime, post-arrest bail will be refused.
- Does a delay in lodging the First Information Report per se destroy the prosecution's case at the bail stage?
- Whether prolonged abscondence of an accused disentitles them to the discretionary relief of post-arrest bail?
- Can post-arrest bail be refused when prosecution witnesses tentatively establish a prima facie case and point to the recovery of a body from the accused's premises?
- Section 302, Pakistan Penal Code 1860
ORDER
1. Applicant Muhammad Saleem, who is facing trial in Crime No.222 of 1996 registered with Police Station TPX Karachi, under section 302, P.P.C. has requested for grant of bail.
2. On 23‑12‑1996, complainant Muhammad Younus lodged F.I.R alleging therein that the applicant Muhammad Saleem, being in league with a lady Dr. Uzma, whom, he wanted to marry, caused murder of ho: sister Shakila. He also alleged that his said sister, who had left with applicant on 3‑12‑1996, was betrothed with the applicant and since he had intention to marry said Dr. Uzma in order to clear his way, he hatched conspiracy with her and her associate and caused murder of his sister and buried her body in his clinic.
3. It is argued by Mr. Chowdhary Iftikhar Ahmed, learned counsel for the applicant, that the F.I.R. was lodged with a delay of 20 days adversely reflecting on the prosecution story, the alleged incident is un witnessed and that there is no evidence to establish that the place from where the dead body of deceased Shakila was recovered belongs to the applicant. It is further argued by Mr. Chowdhary that the body recovered after excavation, was, too, badly decomposed to identify and it was difficult to‑say that it was body of deceased Shakila. Lastly, it was expressed by him that since there is no evidence to establish that the clinic from where the body was recovered belonged to the applicant and that it could not be identified that the body so recovered was of deceased Shakila, the matter requires further enquiry if the applicant is guilty of murder as alleged.
4. On the other hand, it is argued by Mr. Shahdat Awan, learned counsel for complainant that during the course of trial 8 prosecution witnesses were examined of whom P.W. Mst. Hajira who is mother of the deceased discloses in her evidence that her daughter deceased Shakila was taken on 3‑12‑1996 by Dr. Saleem to show her his clinic and thereafter she did not return for three days and another PW Abdul Wahid, in his evidence, stated that he knew the applicant and the deceased who were of their community and he had seen them both going together towards his clinic and after 3 days he came to know that she was missing. It is contended by Mr. Awan that PW Abdul Razzaque had also stated in his deposition that on 3‑12‑1996 he had seen deceased Shakila lying unconscious in the clinic of applicant Dr. Saleem where he injected her a medicine meant for buffalo which he (the said PW) had brought from some store on prescription of applicant. It is submitted by Mr. Awan that the evidence so brought on record sufficiently established that deceased Shakila had gone with the applicant on 3‑12‑1996 where after she went missing and that the clinic belonged to the applicant. Lastly, it is submitted by Mr. Awan that the applicant was absconder for more than five years and was arrested only on 7‑2‑2002 hence he is, even otherwise, disentitled to the discretionary relief of bail.
5. The above arguments of Mr. Awan are adopted by Mr. Abdul Jalil Zubedi, learned counsel for State, who vehemently opposes the instant application.
6. I have given my due attention to arguments of learned counsel for parties and with their assistance I have examined the material placed before me. On perusal of the depositions of P.Ws. Mst. Hajira, Abdul Wahid and Abdul Razzaque I find that the contentions of Mr. Shahdat Aware are not untrue. I also find that P.W. Abdul Razzaque, who is a cleaner at Shah Latif Clinic, New Kalri, Hingorabad, in his deposition, has also stated that deceased Shakila, after being injected by applicant became restless, he had seen, while standing at his house that the applicant Dr. Saleem was upset when he was passing on his motor cycle and that on the next day at about 5:00 p.m. when he went to the clinic on his duty he was informed by the applicant that the clinic would be closed for one week. Thereafter, according to him, when he went there he found some smell on which the applicant informed him that some rat might have died and that he would get the clinic cleaned. The said PW has stated that on the next day when he went to clinic he found that a fresh cemented construction (Thalla‑Chabootra) stood raised at that place and he was informed by applicant that the clinic would be closed for a week or 15 days. He has, further, stated that he and others had gone to Kalri Police Station from where in company of police they reached the Clinic of Dr. Saleem where the body of Shakila was recovered from the place where fresh construction had been raised. All the above facts, in my opinion, though tentatively made, prima facie make out a case against the applicant. The delay in lodgment of FIR, per se does not damage the case of prosecution absolutely at this stage. The fact that the applicant remained in abscondence for more than five years has also not been denied. In the circumstances, I see no merit in this application and dismiss the same.
7. H.B.T./M‑39/K Bail application dismissed.