GHULAM SARWAR alias LALOO vs THE STATE
The applicant sought post-arrest bail in a murder case pending before the Additional Sessions Judge, Sukkur. The prosecution alleged that the deceased was found injured near a graveyard and subsequently died, with the case initially registered against unknown persons. The applicant was later implicated based on an alleged dying declaration made to his mother, the complainant. The applicant contended that his name was absent from the F.I.R., the incident was unwitnessed, and the dying declaration was a belated afterthought recorded three weeks after the incident. The State did not oppose the bail application. The Court held that the significant delay in recording the complainant's statement regarding the dying declaration, coupled with the absence of other incriminating evidence, created a case of further inquiry under the relevant provisions of the Code of Criminal Procedure. Consequently, the Court granted bail, finding that the prosecution's case against the applicant required further investigation and did not meet the threshold for continued incarceration at the pre-trial stage.
- Does a significant delay in recording a statement regarding an alleged dying declaration create a case for further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Is an accused entitled to bail when the only evidence implicating them is a dying declaration introduced weeks after the F.I.R. was lodged?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 13-D, Arms Ordinance 1965
- Section 497(2), Code of Criminal Procedure 1898
ORDER
1. ' The applicant Ghulam Sarwar seeks bail in a murder case (F.I.R. No,15 of 2002 Police Station B Section, Sukkur), pending trial before the Court of learned III-Additional Sessions Judge, Sukkur.
2. ' The prosecution case per F.I.R. Lodged by Mst. Zainab on 18-3-2002 at 13-20 hours states that deceased Ali Murad was her son from her previous husband. After she was divorced by her husband, she had married with Ali Nawaz and was living in his house alongwith her abovesaid son.
3. Ali Murad was employed in a medical store at Sukkur. On 17-3-2002, Ali Murad left for Sukkur as usual but did not return till after sunset and she alongwith her husband waited for Ali Murad till the next morning. She then in the company of her husband Ali Nawaz, and relatives Lal Bux and G.
4. Mustafa left their house in search of Ali Murad, came to Sukkur and inquired from Abdul Lateef Sheikh of the medical store who informed them that Ali Murad had left the medical store at 12-30 of night after closing the store. While on their way back the complainant party learnt that a young man was lying in injured condition near Nao Pind graveyard, upon going there they found Ali Murad in a seriously injured condition lying unconscious near a grave. In the meanwhile a police party also reached there and the injured was .Taken to Civil Hospital, Sukkur. There after a report as aforesaid was lodged against unknown culprits which was registered under section 324/34, P.P.C.
5. And section 13-D of the Arms Ordinance. The injured having died on the same day in the hospital, the case was converted into one of section 302, P.P.C. The police at the conclusion of the investigation submitted challan against the applicant Ghulam Sarwar showing him as an absconding accused, Abdul Waheed shown in custody while accused Abdul Haq, Abdul Jabbar and Abdul Khaliq were let off by police.
6. ' It was argued on behalf of the applicant that the name of the applicant does not appear in the F.I.R. The incident was an unwitnessed one and the police have let off three accused during the investigation, whereas the accused Abdul Waheed has in his judicial confession taken upon himself the only evidence against the applicant is that of a dying declaration which in fact is afterthought and has been introduced belatedly. It was also urged that the complainant Mst.
7. Zainab was again approached by police and her further statement was recorded after three weeks on 9-4-2002,, it was also urged that P.W. Ali Nawaz who had accompanied the complainant and remained with her throughout, was examined by police first, after one week of lodging of the F.I.R.
8. On 25-3-2002, and also his subsequent statement was recorded after two weeks on 9-4-2002 and in none of the statements recorded after the lodging of the F.I.R. The applicant is implicated.
9. Learned counsel for the applicant placed his reliance upon 1998 SCM R 526, 1997 SCM R 462, 1998 SCM R 1578.
10. ' On the other hand Mr. Sher Muhammad Shar, learned A.A.-G. Appearing for the State did not oppose the bail plea and conceded to the grant of bail to the applicant.
11. ' It was only in the subsequent statement of the complainant, recorded after three weeks on 9-4- 2002, that the complainant Mst. Zainab stated before police that the injured had disclosed to her in the hospital during a short span of his consciousness that he was injured by accused Waheed and was to name others also but could not do so and breathed his last. So only piece of evidence against the applicant is his dying statement before her mother Mst. Zainab. He is not implicated by any other P.W. Non-mention of the dying statement of the deceased by her mother in the F.I.R. And disclosure of it after more than three weeks creates a scope for further enquiry as contemplated under section 497(2), Cr.P.C.
12. ' The applicant, hence, would be entitled to bail. Bail is. Therefore, granted to him 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 learned trial Court.
13. ' Bail to the applicant was granted by a short order dated 23-8-2002. Above are the reasons for the same. #EndJudgment