ZAKIR HUSSAIN Versus State
The applicant, Zakir Hussain, sought post-arrest bail in a murder case pending before a Special Court. The prosecution alleged that the deceased was killed by three unknown assailants on a motorcycle. The applicant was not named in the First Information Report (F.I.R.). During the trial, a key prosecution witness was declared hostile after failing to implicate any accused, and other witnesses examined under Section 164 of the Code of Criminal Procedure 1898 did not implicate the applicant. Furthermore, no incriminating material was recovered from the applicant, who had been in custody for over nineteen months without the trial reaching a conclusion. The State did not oppose the bail application. The Court held that the applicant's case fell within the scope of further inquiry under subsection (2) of Section 497 of the Code of Criminal Procedure 1898. Consequently, the Court granted bail, emphasizing the lack of evidence implicating the applicant and the prolonged period of incarceration without trial completion.
- Does the failure of prosecution witnesses to implicate an accused in their statements or testimony constitute grounds for bail under the principle of further inquiry?
- Can bail be granted when the accused is not named in the F.I.R. and no incriminating evidence is recovered?
- Does a prolonged period of custody without the conclusion of the trial justify the grant of bail?
- Section 164, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
The applicant Zakir Hussain seeks his bail in a murder case, bearing Special Case No.46 of 1999 and pending trial before the Court of Special Judge No.II, for S.T.A., Karachi East.
2. The prosecution case as per the F.I.R. lodged by the complainant Abdul Hafeez Qadri on 19-7-1998 at 2-00 a.m. at Police Station Zaman Town reveals that the complainant is a worker of Sunny Tahreek. On 19-7-1998, while he was available in his house at 11-30 p.m. having returned from a meeting held at Kalapul, he received information from the house of Waheed Qadri (deceased) that while the deceased Waheed Qadri, P.Ws. Baber Bilal and Moulana Muhammad Ali Qadri were talking with each other opposite to the deceased s house at 10-30 of 18-7-1998, three youngsters appeared on a motorcycle there, who stopped the motorcycle and one who was sitting behind with kalashnikov got down and fired at the deceased at the pointation of his two other companions, as a result of such firing the deceased got seriously injured and fell down. He was taken to Jinnah Hospital in injured condition by his brother Arif Beg and others but the deceased breathed his last on the way to the hospital. It was reported further that three unknown culprits had killed the deceased for unknown reasons and they would be identified by P.Ws. Muhammad Ali Qadri and Muhammad Anwer.
3. At the conclusion of the investigation of the case, the police submitted challan in the Court against some 14 accused persons including 10 shown as absconding accused while Zakir Hussain and three others were shown in custody.
4. It was contended by Mr. Saathi M. Ishaque, learned counsel for the applicant that the applicant was innocent and was falsely implicated in the case. He argued that his name did not appear in the F.I.R., nothing incriminating was secured from his possession and the P.Ws. Muhammad Ali and Muhammad Anwar failed to identify the applicant. He further urged that P.W. Muhammad Ali Qadri was examined in Court but he did not implicate any accused and was declared hostile by the prosecution. He added that P.Ws. Moulana Saqib Qadri, Muhammad Anwar and Muhammad Nadeem were examined under section 164, Cr.P.C. but none of them have implicated the applicant. It was lastly urged that the applicant was in custody since 19 months and the conclusion of the case is not within sight and case required further inquiry.
5. Mr. Habib Ahmed learned A.A.-G. appearing for the State did not oppose the bail plea of the applicant and raised no objection to the grant of bail.
6. Admittedly, the applicant was not named in the F.I.R. The P.W. namely Muhammad Ali Qadri has not implicated the applicant in his evidence before the Court. Other prosecution witnesses namely Moulana Saqib Qadri, Muhammad Anwar and Muhammad Nadeem alias Baber Bilal have not implicated the applicant in their 164, Cr.P.C. statements. The applicant is in custody since last more than one and half year. The case of the applicant in view of the aforesaid would fall within the ambit of subsection (2) of section 497, Cr.P.C.
7. The bail is, therefore, granted to the applicant, subject to his furnishing a solvent surety in the sum of Rs.2,00,000 (Rupees two lacs only) and P.R bond in the like amount to the satisfaction of the trial Court.
8 .Bail was allowed to the applicant by a short order, dated 22-12-2000. Above are the reasons for the same.
H.B.T./Z-18/K Bail granted.