KHADIM HUSSAIN Versus State
This matter arises from a bail application filed by the applicant Khadim Hussain seeking post-arrest bail in a case involving robbery of a motorcycle. The core legal questions pertain to the effect of an un-explained or explained delay in lodging the First Information Report, the evidentiary value of affidavits sworn by the complainant and a prosecution witness exonerating the accused, and whether continuous detention without progress in the trial warrants the grant of bail. The court held that the applicant is entitled to bail, observing that there was a delay of seven days in lodging the F.I.R., the applicant had been in custody for 16 months without a single witness being examined by the trial court, and bail cannot be withheld as a form of punishment. The key principle laid down is that protracted incarceration without trial progress, coupled with circumstances of the case, justifies the concession of post-arrest bail.
- Whether delay in lodging the F.I.R. can be a ground for granting post-arrest bail?
- Can bail be withheld as a form of punishment when no prosecution witnesses have been examined during a lengthy detention?
- What is the effect of affidavits sworn by the complainant and a prosecution witness exonerating the accused at the bail stage?
ORDER
1. SYED PIR ALI SHAH, J .--- This bail application has mainly been argued that there is un-explained inordinate delay in lodging of F.I.R. It is argued that complainant Muhammad Haroon and P.W. Faizan have sworn their affidavits exonerating the applicant from the commission of the offence. It is stated that there is no apprehension of tampering with the prosecution evidence, so also likelihood of absconding of the applicant. Copies of affidavits of complainant Muhammad Haroon and P.W. Faizan have been produced.
2. On the other hand, learned State counsel vehemently opposed to the grant of bail to accused Khadim Hussain, as according to him, seven days delay in lodging of F.I.R. has been explained and that complainant and P.W. Faizan have not been produced before this Court. He argued that specific role has been assigned to the applicant and, as such, in absence of any enmity with the complainant party, accused is not entitled for bail.
3. As per F.I.R., allegations against the present applicant are that on 16-2-2007 he along with three others stopped the complainant who was riding the motorcycle along with P.W. Faizan. It is mentioned that the face of one person was muffled and others were open faces and out of them, one muffled face person armed with pistol asked the complainant to get down from motorcycle due to resistance of the complainant, the face of muffled person was exposed and he was identified as Khadim Hussain Korai. Thereafter they robbed motorcycle and fled away. The matter was initially complained to the nek mards and afterwards it was reported to the police on 23-2-2007 at 2-30 p.m. The complainant and P.W. Faizan have sworn their affidavits before the trial Court and their filing of affidavits before this Court are not essentially required. Obviously, there is delay of seven days in lodging of F.I.R: The applicant was arrested on 25-2-2007 and, as such during past 16 months not a single witness has been examined by the trial Court. In these circumstances, applicant/accused is entitled for bail and his bail cannot be withheld as a sought of punishment, he is granted bail on furnishing surety in the sum of Rs. one hundred thousand and P.R. bond in the like amount to the satisfaction of learned trial Court.
4. H.B.T:/K-24/K Bail granted.