MUHAMMAD NASEEM vs THE STATE
This matter arises from a criminal bail application filed by the applicant Muhammad Naseem seeking post-arrest bail in connection with Crime No. 233 of 2001 registered under Section 324 read with Section 34 of the Pakistan Penal Code at Police Station Gulistan-e-Jauhar, Karachi. The core legal question concerns whether the applicant is entitled to post-arrest bail given a ten-day delay in lodging the FIR, the absence of the applicant's name in the initial station diary entry, conflicting medical opinions regarding the nature of the injuries, and the applicability of constructive liability. The Sindh High Court held that the case calls for further inquiry under Section 497(2) of the Code of Criminal Procedure 1898, as the applicant was not named in the initial police report, no direct role was assigned in the earlier communication, and conflicting medical opinions existed, the benefit of which must go to the accused. The court laid down the principle that where conflicting medical certificates exist and initial police records omit the accused's name alongside an unexplained delay in lodging the FIR, the accused's guilt falls within the scope of further inquiry, warranting the grant of bail.
- Whether an unexplained ten-day delay in lodging the FIR and omission of the accused's name from the initial station diary entry justifies granting post-arrest bail?
- Does the existence of conflicting medical opinions regarding the nature of an injury entitle the accused to the benefit of doubt at the bail stage?
- Can constructive liability under Section 34 of the Pakistan Penal Code be conclusively determined at the bail stage when no direct role is assigned in the initial report?
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
' Applicant was arrested on 9-8-2001 for an offence punishable under section 324/34, P.P.C.
Registered as Crime No,233/1 at Police Station Gulistan-e-Jauhar, Karachi.
2. This incident took place on 18-7-2001 at 7-45 p.m. And the F.I.R. Was lodged on 28-7-2001 at 3-00 p.m. At Gulistan-e-Jauhar. The allegations as per F.I.R. Are that on 18-7-2001 complainant Muhammad Adnan Bashir was returning to his house on motorcycle and when he reached at Windsor Chowrangi, Gulstan-e-Jauhar two persons riding a motorcycle stopped him. One of them fired at him, which hit his left hand yet he succeeded in catching hold of barrel of pistol. The accused made second fire but it did not hit the complainant. The complainant returned to his house and then took Ch. Zulfiqar and Saifur Rehman and reached police station from where he was referred to Jinnah Hospital for treatment. It was disclosed in the F.I.R. That there is dispute over a plot of land between complainant's father and applicant and a civil case is also pending in the Court.
3. Learned counsel for applicant argued that the F.I.R. Is delayed by 10 days; the information first communicated to police on the day of incident does not mention the name of applicant; there is no eye-witness of the occurrence; no specific role has been assigned to applicant; and the only injury attributed to the co-accused is not on vital part of the body of complainant and has been declared as Ghair Jaifa Mutalahima which is punishable for three years. He further contended that admittedly there existed enmity between the parties and on that score the applicant has been involved falsely.
4. Mr. Sharafat Ali Khan learned State Counsel submitted that-the guilt of applicant calls for further inquiry as such he has no objection to grant of bail. Learned counsel for complainant contended that the medical certificate has not been issued correctly otherwise the working capacity of two fingers and thumb of left hand of the complainant has been affected, therefore, the offence would fall within the category of Itlaf-iSalahiyyat-i-Udw and the applicant is constructively liable for the offence.
5. I have considered these contentions in the light of material available with the prosecution. The name of applicant is not appearing at Entry No,35 made in the station diary of police station on 18- 7-2001 at 21-00 hours but he has been shown as co-accused in the F.I.R. Lodged after 10 days.
Instantly there is no ocular evidence against the present applicant other than the version of complaint and no role has been directly assigned to him in the earlier report. Even otherwise in the F.I.R., the fires have been attributed to co-accused. The earlier medical certificate brings the offence within the category of Ghair Jaifa Mutlahima but as contended on behalf of complainant it falls within the definition of Itlaf-i-Salahiyyat-i-Udw, therefore, there are two conflicting opinions the benefit whereof may be claimed by accused. In the circumstances the constructive liability of applicant can only be determined at the trial, and presently his guilt calls for further enquiry as such he is entitled to bail.
6. The application is allowed. The applicant be released on bail on furnishing surety in the sum of Rs,50,000 and executing P.R. Bond in the like amount to the satisfaction of trial Court.
Cited by 3 cases
- RAJOO and another vs THE STATE 2004 P C R L J 526
- RAJOO Versus THE STATE 2004 PCrLJ 526
- BADAM SHER vs MUHAMMAD ALI and 2 others 2002 P Cr. L J 1418