Haji BAGAN JAMALI vs THE STATE
This is a bail application filed by the applicant, Haji Bagan Jamali, seeking post-arrest bail in a murder case pending before the 1st Additional Sessions Judge, Malir, Karachi. The core legal question was whether the applicant was entitled to bail given the lack of direct evidence linking him to the crime. The applicant's name was not mentioned in the First Information Report, no identification parade was conducted, and no prosecution witnesses implicated him in their statements recorded under Section 161, Code of Criminal Procedure 1898. The prosecution's case against the applicant relied primarily on the statement of a co-accused, which is inadmissible in evidence, and the recovery of licensed weapons. The Court held that the applicant was entitled to bail as his involvement remained unproven and the case fell within the scope of further inquiry. The key principle laid down is that where the prosecution fails to collect sufficient evidence to connect an accused to the crime, and the only incriminating material is an inadmissible statement of a co-accused, the accused is entitled to the concession of bail pending trial.
- Is the statement of a co-accused made to the police sufficient to deny bail to an accused?
- Does the absence of an accused's name in the First Information Report and the failure to conduct an identification parade entitle an accused to further inquiry?
- Can an accused be denied bail solely on the basis of the recovery of licensed weapons when no other evidence connects them to the crime?
- Section 161, Code of Criminal Procedure 1898
ORDER
1. ' This unfortunate incident had occurred on 15-6-2001 in the house of complainant Sudheer Ahmed who lodged, F.I.R. On the same day, alleging therein that he was residing alongwith his family in that house for the last 10 years as tenant. Four months back, his sister Mst. Naziran was married to one Mehar. After the marriage, he and his wife started residing in the house of complainant. A month prior to the incident Mehar was annoyed with the complainant and he left his house with his wife and children and went to his native place at District Jacobabad. On 15-6-2001 at about 4-30 hours complainant and his family members were sleeping in his house. When there was a knock on the door. His mother opened the door. After she opened the door, five persons namely Mehar, Meer, Nawaz alongwith two unknown persons entered the house. Mehar fired at mother of the complainant who succumbed to injuries on the spot. Mir fired at his brother Muneer Ahmed who also died on the spot, whereas Nawab fired at his brother Nazir Ahmed who after sustaining injuries fell down on the ground. The culprits, thereafter ran away. The complainant took injured Nazir Ahmed to Jinnah Hospital for treatment and got him admitted in Surgical Ward 3. The F.I.R. Was registered.
2. ' After registration of F.I.R., the police took up investigation and submitted challan in the Court. The case at present is pending trial in the Court of 1st Additional Sessions Judge Malir, Karachi being Sessions Case No,123 of 2002.
3. ' It is contended by the learned counsel that the name of present applicant does not figure in the F.I.R. After his arrest no identification parade has been held. None of the prosecution witness has taken his name.
4. ' It is submitted that co-accused Mehar had stated before the police that the present applicant Haji Beghan Jamali was also one of the culprits in the commission of this incident. He was arrested on 15-3-2001 and since then he is in custody. After his arrest, he produced three firearm weapons viz. One double-barrel gun .12 bore one .222 rifle Kalashnikov type and one .30 bore TT pistol.
5. ' It is submitted by the learned counsel that the aforesaid weapons are licensed one and copies of licences have been produced. Mashirnama of recovery also shows that the licences of aforesaid weapons were produced by accused.
6. ' Mr. Abdul Nabi, learned counsel appearing for the State has opposed bail plea of the accused on the ground that the weapons have been recovered from his possession.
7. 'The name of present applicant does not transpire in the F.I.R. After his arrest he has not been put to identification test. None of the prosecution witnesses has taken his name in 161, Cr.P.C. Statement.
8. ' He produced licences of weapons which were recovered from his possession. The accused is in custody since 13-3-2001. He is arrested on the basis of police statement of co-accused Mehar which is inadmissible in evidence.
9. ' Under these circumstances, the case of accused comes under the scope of further enquiry as no evidence is collected by the police against him and his involvement in the commission of this incident is yet to be proved by the prosecution.
10. ' Applicant is granted bail subject to furnishing two sureties in the sum of Rs,200.000 each and P.R.
11. Bond in the like amount to be satisfaction of the trial Court.