AZHAR HUSSAIN and others vs THE STATE
This petition for leave to appeal challenged a Lahore High Court order that cancelled the bail previously granted to the petitioners by the trial court. The petitioners were accused in a case involving murder and other offences, and their initial bail was based on a finding of innocence by the investigating agency. The High Court cancelled the bail, citing the existence of a dying declaration and statements from eye-witnesses recorded under Section 161 of the Code of Criminal Procedure 1898, which implicated the petitioners. The core legal question was whether the High Court correctly exercised its discretion in cancelling bail when there was prima facie evidence, such as a dying declaration, linking the accused to the crime. The Supreme Court upheld the High Court's decision, finding no ground to interfere with the well-reasoned order. The Court reaffirmed that the merits of evidence, such as the timing of witness statements or omissions in the F.I.R., are not to be adjudicated at the bail stage when there is sufficient material to establish a prima facie case.
- Can bail be cancelled when there is a dying declaration implicating the accused?
- Should the merits of evidence, such as the delay in recording witness statements, be adjudicated at the bail stage?
- Does the omission of an accused's name in the F.I.R. automatically exonerate them from criminal liability?
- Article 185(3), Constitution of the Islamic Republic of Pakistan 1973
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 449, Pakistan Penal Code 1860
- Section 452, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
ORDER
' IRSHAD HASAN KHAN, ACTG. C.J.---This petition under Article 185(3) of the Constitution of the Islamic republic of Pakistan, 1973 is directed against the order dated 12-3-1999 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur in Criminal Miscellaneous No.335-CB/1997/BWP.
2. This case has arisen out of case F.I.R. No.166/96 dated 9-7-1996 under section 302/34/449/452/324, P.P.C. The petitioners were granted bail by the trial Court on the ground that they were found innocent by the investigating agency. Ghulam Muhammad, respondent No.2 herein moved two separate petitions before the High Court, Bahawalpur Bench, Bahawalpur for cancellation of bail. The learned Judge in Chambers allowed the application, in that the petitioners were specifically named in the dying declaration of Mst. Nahid and also in the statements of other witnesses, recorded under section 161, Cr.P.C.
3. It would be of advantage to reproduce the following passage from the impugned judgment:-- "It is now well settled that the mere fact that the name of a particular accused is not mentioned in the F.I.R. Would not exonerate him from the criminal liability, if his involvement in the criminal case is otherwise established by cogent and convincing material and in the instant case there is ample material available on the file which may tend to show that all the respondents were present at the spot at the relevant time. They had gone to the spot with a premeditation to cause the intentional death (Qatl-e-Amd) of Arshad Abbas because the accused/respondents had strong suspicion that the deceased Arshad Abbas had cultivated illicit relations with Mst. Sajida. Specific part is attributed to each of them. The arguments propounded by the learned counsel for the respondents that had the eye-witnesses seen the respondents at the spot they would have been mentioned in the F.I.R., that the statements of the eye-witnesses who claimed to have seen the respondents on the spot were recorded after a considerable delay, essentially pertain the merits of the case and cannot be adjudicated upon at the bail stage. Suffice it to say that dying declaration made by Mst. Nahid, deceased in which names of all the respondents are mentioned is a strong piece of evidence against the respondents and that may be the sole basis of conviction provided the Court believes it genuine and true and learned counsel for the respondents has failed to point out anything which may tend to cast any suspicion about the genuineness of the dying declaration and establish its falsehood. The dying declaration stands further fortified by the statements of other eye-witnesses who have also implicated all the accused respondents in the commission of this double murder occurrence. The respondents and the eye-witnesses were known to each other, hence their identity cannot be said to be in doubt."
' After hearing the learned counsel for the petitioner and perusing the material available on record, we see no ground to interfere with the well-reasoned order of the High Court canceling bail of the petitioners.
' At this stage Sh. Khizar Hayat, learned Advocate Supreme Court for respondent No.2 has made a statement at the bar that notwithstanding directions by this Court to the trial Court to proceed with the case expeditiously, no progress has been made so far. We directed the trial Court to conclude the trial within 4 weeks from the receipt of this order even if the case is to be heard on day-to-day basis under intimation to the .Assistant Registrar (Judicial) of this Court. The trial Court shall also furnish report as to why no steps were taken to expedite the trial as alleged by Sh. Khizar Hayat, learned Advocate Supreme Court.
' With the above observations, the petition is dismissed.