KHIZAR HAYAT Versus State
This bail application arose from a criminal case registered against the applicant for the alleged possession of forged documents and equipment for their production. The core legal question was whether the applicant was entitled to post-arrest bail given the allegations of mala fide intent, previous enmity with police officials, and procedural irregularities in the recovery process. The Court held that the applicant was entitled to bail, observing that the prosecution failed to adequately address the applicant's claims of prior enmity with a police officer, which had led to previous litigation and a prior case being disposed of as a misunderstanding. Furthermore, the Court noted the absence of independent witnesses during the search and recovery, violating mandatory procedural requirements, and the lack of evidence linking the applicant to the premises where the recovery occurred. The Court affirmed that where the prosecution's case is clouded by significant doubt and potential mala fides, the benefit of such doubt must be extended to the accused at the bail stage, without requiring a deep appreciation of the evidence.
- Does the failure to associate independent witnesses during a search and recovery operation, as required by law, entitle an accused to bail?
- Can bail be granted where there is a prima facie case of mala fide intent and previous enmity between the accused and the police?
- Is an accused entitled to the benefit of doubt at the bail stage when the prosecution's case regarding the recovery of incriminating material from the accused's possession is disputed?
- Section 420, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 467, Pakistan Penal Code 1860
- Section 13-D, Arms Ordinance 1965
- Section 103, Code of Criminal Procedure 1898
ORDER
1. MRS. YASMIN ABBASEY, J.--- Applicant Khizar Hayat has moved this bail application in a case registered against him under sections 420, 468, 471 and 467, P.P.C. under Crime No.294 of 2006 at Police Station Shah Latif Town, Karachi.
2. Case of prosecution is that on 29-10-2006, S.-I. Ali Muhammad after receiving information arrested applicant Khizar Hayat from his house, who was found in possession of two arm licences in the names of Basharat Masih and Rana Muhammad Aslam issued by D.D. Kohat along with blank books, blank certificates of Board of Education, Karachi forged international driving licence, blank educational certificates of NED and Dawood College and so on as mentioned in the F.I.R. On the basis of recovery of forged documents and a machine for preparing the same applicant was taken into custody and case was registered against him.
3. Applicant at the first instance has moved a bail application before the 1st Additional Sessions Judge, Malir, Karachi. The same was rejected on 7-12-2006 hence he has approached to this Court.
4. It is argued by learned counsel for applicant that applicant and his wife both are police constables and they have previous enmity with one S.-I. Nasir Mehmood who put them in unnecessary trouble that's why applicant's wife was forced to move different applications to I.-G. and Naib Nazim for redress. She also approached the Provincial Ombudsman on 27-12-2005 and had also moved Criminal Miscellaneous Application No.49 of 2006 but in spite of all these struggles, S.-I. Nasir Mehmood have lodged F.I.R. No.27 of 2006 at Police Station Sohrab Goth with the same nature of allegation as has been urged in the present case. During investigation of that case it was observed that case against this applicant under F.I.R. No.27 of 2006 was registered under misunderstanding. Such report of Town Investigating Officer, Gadap Town, Karachi to the Senior Superintendent of Police, Investigation Zone III, Karachi on 7-3-2006 has been placed on record as Annexure "F-1", wherein it was reported that during course of investigation it revealed that Khizar Hayat was police constable and the envelope was not belonged to him, while the same was found by him also as abandoned., It also revealed that the offence was not committed by him and case was registered misunderstandingly Investigating Officer and S.I.O. has requested to dispose of the same as FR? Class".
5. Enmity as alleged in between applicant arid S.-I. Nasir Mehmood somehow appears to be correct in view of compromise said to have been arrived in between them on 29-1--2006 before Naib Nazim. Though this compromise before Naib Nazim apparently has no weight as under what authority Naib Nazim dealt with such matter is not appearing. Anyhow non-denial of this Punchayat and the attempt to settle the matter through compromise in between this applicant and S.-I. Nasir Mehmood at least is appearing which confirms previous dispute in between them.
6. Learned counsel for the applicant has also taken a plea that this applicant was arrested on 13-10-2006 and after a delay of seven days F.I.R. was registered on 21-10-2006. Though no satisfactory evidence has been placed on record to prove the arrest of applicant on 13-10-2006 but the fact remains that within a short span of time an attempt to involve this applicant with the same nature of allegations has been made by police party and it is stated that though Naib Nazim had tried to compromise in between both the applicant and S.-I. Nasir Mehmood but still S.-I. Nasir Mehmood has grudge against this applicant and now through his, police official friends he has booked him in the present case along with a case under section 13-D' of the Arms Ordinance under F.I.R. No.293 of 2006. It is contended by learned counsel for applicant that though no such recovery as alleged was made from the possession of this applicant but even if for the sake of argument prosecution case is taken as correct then also House No.417, wherefrom this substance of forged documents was said to have been recovered does not belong to this applicant as applicant is residing in a House bearing No.416, Shah Latif Town that too on rent. He has further objected that though according to prosecution the area wherefrom the alleged recovery had taken place is situated in a residential populated area but in spite of that none of the inhabitants of the area was called to witness the search and recovery from the house as required under section 103; Cr.P.C. He further pleaded that except recovery of forged documents that too from another house than the residence of this applicant prosecution has not been able to place any person as a suspected person, who attempted to procure such forged documents from the applicant not any witness has been pointed out by them in whose presence this applicant had attempted to sell out such forged documents for monetary gains.
7. Learned counsel for the State though had tried to oppose this bail application but no sufficient ground has been raised by her to controvert the allegations and arguments advanced by learned counsel for the applicant.
8. From the perusal of record, without going into the deep appreciation of evidence and merits of the case, it is observed that the allegations of previous enmity in between the applicant and S.-I. Nasir Mehmood is appearing on record. Applications moved 'by applicant's wife, who too is a police personnel to different authorities against the malicious act of S.-I. Nasir Mehmood against this applicant is also 'a part of the record, which has not been specifically denied by learned State counsel. Institution of two different cases within a short period with the same nature of offence out of which in one case Investigating Officer had reported that the institution of case against this applicant under Crime No.27 of 2006 was because of some misunderstanding. Prosecution has also failed to clarify that how the recovery of forged documents and machine, if any from another house than occupied by this applicant can be foisted on him with no satisfactory proof of them to be in the custody of this applicant as none of the witness of the locality where such search was made and alleged recovery said to have taken place was associated with the prosecution.
9. In view of foregoing reasons it was observed that prima facie applicant has a case for the grant of bail. The allegations levelled against him on the grounds discussed above creates a doubt and the applicant is entitled to take benefit of them. Hence the bail application of the applicant was allowed on 9-4-2007 and applicant was ordered to be released on bail subject to furnishing surety in the sum of Rs.4,00,000 (Rupees four lac only) with P. R. Bond in the like amount to the satisfaction of the Nazir of this Court.
10. H.B.T./K-36/L Bail granted.