ALLAH WARRAYO and another vs THE STATE
The applicants sought post-arrest bail in a case registered under sections 302, 377, 342, and 34 of the Pakistan Penal Code 1860, read with section 18 of the Offence Against Zina (Enforcement of Hudood) Ordinance 1979. The core legal question revolved around whether the applicants were entitled to bail when their names were absent from the First Information Report, the identifying witnesses were introduced belatedly after arrest, and no incriminating recovery was made from them. The Sindh High Court held that the case of the applicants called for further inquiry under section 497(2) of the Code of Criminal Procedure 1898, as their involvement appeared to be an afterthought and false implication could not be ruled out. The court laid down the principle that where an unseen crime lacks immediate connecting evidence and witnesses are introduced with unexplained delays, reasonable grounds do not exist to believe the accused are guilty, warranting the grant of bail.
- Whether bail should be granted when the accused are not named in the First Information Report and witnesses are introduced after a delay?
- Does a case fall under further inquiry under section 497(2) of the Code of Criminal Procedure 1898 when the only evidence against the accused is belatedly recorded statements?
- Can bail be granted when no incriminating recovery is made from the possession of the accused?
- Section 302, Pakistan Penal Code 1860
- Section 377, Pakistan Penal Code 1860
- Section 342, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 18, Offence Against Zina (Enforcement of Hudood) Ordinance 1979
- Section 161, Code of Criminal Procedure 1898
- Section 164, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
- Section 497(1), Code of Criminal Procedure 1898
1. ' The applicants are booked for an offence under sections 302, 377, 342 and 34, P.P.C. Read with section 18, Offence Against Zina (Enforcement of Hudood) Ordinance, 1979 arising out of Crime No,11 of 2000 Police Station Thariri Mohabat.
2. ' On 24-1-2000 at 19-20 hours complainant Muhammad Nawaz lodged F.I.R. At Police Station Thariri Mohabat stating therein that his son Zahid Hussain is student. On 20-1-2000 when complainant alongwith Haji Shah Nawaz and Mukhtiar Ahmed returned to his home at sun-set time, they were informed by the inmates of house that Zahid Hussain at evening time had left for round in the city but had not yet come back. The complainant and others went in his search. Some of the villagers informed them that the boy was standing on the road near Jeendal Shah at about 5/6 p.m. They deputed some persons for locating the whereabouts of Zahid Hussain. Such news was published in newspapers and the intimation was also given to various police stations. On 24-1-2000 complainant and his brothers were informed by their cousin Zulfiqar that at about 6-00 p.m. While he was passing from the lands of Qadir Bux Jhatial he found some dogs which had gathered. He went near and found the dead body of Zahid Hussain lying in Palal. He stated that some of the parts of his body were eaten by the dogs. The complainant and others went there and saw the dead body of deceased Zahid Hussain. The complainant lodged F.I.R. Disclosing his suspicion in accused Nisar Ahmed Abro and others. He stated in his F.I.R. That the intention of the culprits must be to commit Zina with him and thereby committed his murder.
3. ' The police after registration of F.I.R. Started conducting investigation and arrested the present applicants on 2-2-2000. On 5-2-2000 police introduced two witnesses namely Sikandar Ali and Ghulam Shabbir in the case and recorded their 161, Cr.P.C. Statements. Yet 164, Cr.P.C. Statements of the abovenamed witnesses were recorded on 14-2-2000. The witnesses disclosed the names of present applicants to be the culprits of this incident.
4. ' It is contended by the learned counsel for the applicants that the names of present applicants do not appear in the F.I.R. Similarly the names of alleged two witnesses Sikandar and Ghulam Shabbir also did not transpire in the F.I.R. For the first time the said two witnesses were joined in investigation on 5-2-2000 and they disclosed the names of present applicants. The 164, Cr.P.C.
5. Statements of the witnesses were again delayed by about nine days. Nothing incriminating was recovered from the possession of applicants. Except the oral version of the said two witnesses, there is no other piece of evidence connecting the applicants in the commission of the offence. It is submitted that the case of the present applicants is quite distinguishable from the case of accused Nisar and Jamal. The case of applicants require further enquiry as contemplated by section 497(2), Cr.P.C. The alleged eye-witnesses were silent about the incident for about 15 days after the incident. The false implication of accused cannot be ruled out.
6. ' Mr. Abdul Sattar Soomro, learned counsel appearing for the learned A.A.-G. Has conceded to the bail plea of the applicants on the ground that the involvement of the applicants in the instant case appears to be afterthought.
7. The police record indicates that incident was unseen and names of witnesses Sikandar and Ghulam Shabbir were introduced by the police for the first time on 5-2-2000. The accused were already arrested on 2-2-2000, there was absolutely no evidence against theth on that day connecting them with the commission of offence. The 161, Cr.P.C. Statements of these two witnesses were recorded on 5-2-2000 but their 164, Cr.P.C. Statements were recorded on 14-2-2000. The names of accused do not transpire in the F.I.R. The names of P.Ws. Sikandar and Ghulam Shabbir also do not figure in the F.I.R. No other incriminating piece of evidence has been collected by the police against the present applicants. The case of applicants is distinguishable from the case of accused Nisar and Jamal. False implication of accused in such circumstances cannot be overruled and the case of applicants in peculiar facts and circumstances would come out of prohibitory clause of section 497(1),- Cr.P.C. At this stage, there appears no reasonable ground to believe that the accused are guilty of the offence with which they are charged.
8. In this view of the matter, the accused are granted bail in the sum of Rs,2,00,000 each and P.R. Bond in the like amount to the satisfaction of the trial Court. #EndJudgment