MUHAMMAD ASLAM Versus THE STATE
The applicants sought post-arrest bail under Section 497 of the Code of Criminal Procedure 1898 in a case registered under Sections 302 and 34 of the Pakistan Penal Code 1860. The core legal question was whether the applicants were entitled to bail on the grounds of delay in recording statements under Section 161 of the Code of Criminal Procedure 1898, non-naming in the First Information Report, and delayed recovery. The Sindh High Court held that mere delay in recording statements under Section 161 is not sufficient at the bail stage where eye-witnesses have explained the delay, and particularly where weapons and blood-stained clothes were recovered on the pointation of the applicants shortly after their arrest. The court dismissed the bail application, directing the trial court to conclude the trial within three months, relying on the principles that delay in recording statements cannot be determined at the bail stage and that early conclusion of trial is a relevant factor.
- Does a delay in recording statements under section 161 of the Code of Criminal Procedure 1898 automatically entitle an accused to post-arrest bail?
- Can the question of delay in recording witness statements be conclusively determined at the bail stage?
- Does the recovery of weapons and blood-stained clothes on the pointation of the accused disentitle them to bail in a murder case?
- Whether bail should be refused when the trial is likely to be concluded in the near future?
- Section 497, Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
ORDER
1. The applicants/accused have filed bail application under section 497, Cr.P.C.
2. Brief facts of the case are that Crime No.51 of 2000 at Police Station Phulleli, Hyderabad was registered against the applicants under sections 302 and 34, P.P.C. As per prosecution case on 21-7-2000 at 10-00 hours complainant Muhammad Yousuf son of Haji Muhammad Ismail alias Babu by caste Shaikh registered a case of incident, which took place on 21-7-2000 from 5-00 to 5-25 hours and it was taken down under sections 302 and 34, P.P.C. In the F.I.R. it is stated that at the time when the complainant was preparing for Fajr prayers at about 5-25 hours Moazan of Qadir Jamia Mosque, namely Chacha Sulleman informed the complainant at his house that some unknown persons have injured his father by causing dagger and knife blows. On such information complainant reached at the spot and saw his father in injured condition, so also Mohalla person, namely Nadeem, Ishaque and others/reached over there. Father of the complainant died at the spot and police was informed through telephone, to which police arrived at the spot. After post-mortem complainant registered F.I.R. at police station that some unknown persons, on account of some enmity, have killed his father by causing dagger and knife injuries.
3. After registration of the F.I.R. police took up investigation and on 23-7-2000 arrested the applicants/accused and co-accused, namely Imran and on 7-8-2000 submitted challan before 1st Extra-Joint Civil. Judge and FCM, Hyderabad.
4. Prior to filing the present application, the applicants/accused filed application for bail before IV-Additional Sessions Judge, Hyderabad, who rejected the same vide his order, dated 5-7-2001.
5. Heard Mr. S. Hamad Ali Shah, learned Advocate for the applicants, Mr. S. Madad Ali Shah, learned Advocate for complainant and Mr. Masood A. Noorani, Addl. A.-G.
6. The learned Advocate for the applicants contended that the applicants have not been named in the F.I.R. and no motive has been stated for killing the deceased. He further contended that F.I.R. was registered after post-mortem and as such applicants are entitled for bail. The learned Advocate also argued that the prosecution has dropped one Aziz Ahmed as witness, who informed the incident on telephone to police. He further contended that the deceased was against the Narcotic paddlers and applicants had joined their hands with him against the said drug paddlers, who had moved so many applications to the higher authorities against one Abdul Aziz, the former Councillor and they became annoyed against the applicants as well as against the deceased and implicated the applicants falsely in this case. The learned Advocate further argued that the alleged eye-witness, namely Attaullah is close relative of the deceased and his statement under section 161, Cr.P.C. was recorded after 7 days of the incident. He further stated that the second eye-witness, namely, Irfan is also close friend of the complainant and his statement under section 161, Cr.P.C. was also recorded after 7 days of the incident. He further stated that the applicants are in jail from last three years and there no case is made out against the applicants and statements of eye-witnesses under section 161, Cr.P.C. have been recorded after 7 days and as such applicants are entitled for grant of bail. In support of his contentions, the learned Advocate relied upon Fiaz Ahmed v. State 1999 YLR 1077; Malik Muhammad Iqbal v. Syed Abid Hussain NLR 1997 Cr.LJ 569; Abdul Ghani v. State 1994 MLD 862; State v. Maqbool Ahmed 1983 PCr.LJ 1140; Tariq v. State 1984 PCr.LJ 1967: Asfandyar Wali v. State PLD 1978 Pesh. 38 and Muhammad Khan v. Maula Bakhsh 1998 SCMR 570. In support of his contention that the recovery was effected after long time, the learned Advocate for the applicant relied upon Ghulam Rasool v. State 1984 PCr. LJ 2702.
7. On the other hand, Mr. S. Madad Ali Shah, learned Advocate for complainant argued that the delay of 5 hours in the lodgment of the F.I.R. in the circumstances of the case is but natural and immaterial looking to the nature of the incident. As regards the contention of the learned Advocate for the applicants that the name of the applicants are not mentioned in the F.I.R. the learned Advocate contended that it itself establishes that the complainant has no enmity against the applicants. The learned Advocate further argued that the proceedings in the matter have already been commenced and the same is likely to be concluded near future.
8. Mr. Masood A. Noorani, learned Additional Advocate-General supported the arguments of Mr. S. Madad Ali Shah.
9. I have gone through the record and also taken into consideration respective arguments of the learned Advocates. I am of the view that mere delay in recording the statement under section 161, Cr.P.C. by itself is not sufficient for admitting the applicants on bail in the circumstances of the matter. The eye-witnesses have given reasons for recording their statements with such a delay. As regards the cases of Muhammad Khan and Tariq (supra), the principle laid down in the said cases is not attracted in the present case. In the case of Ghulam Muhammad v. State 1997 MLD 1550, since the applicants had not led to the recovery of any weapon, bail was granted on the ground of further inquiry. Likewise the other cases relied upon by the learned counsel for the applicants, the bail was granted on the ground of further inquiry. In the instant case the applicants led the police party for the recovery of the weapons on 23-7-2000, the day when the applicants/were arrested. The applicants/accused were arrested two days after lodging of the F.I.R. and recoveries were effected from them on their pointation. Apart from the dagger etc., blood-stained clothes were also recovered by the police. In the case of Imtiaz Ahmed v. State PLD 1997 SC 545 Honourable Supreme Court held that the delay in recording the statement could not be determined at the bail stage.
10. Keeping view of the dictum laid down by the Honourable Supreme Court in Muhammad Nawaz v. State 2002 SCMR-1381, as the trial is likely to he concluded; the bail application is dismissed with direction to the trial Court to conclude the trial within three months from the date of receipt of this order.
11. H.B.T./M-76/K Bail application dismissed.