QALANDAR BAKHSH vs THE STATE
The applicant, Qalandar Bux, sought post-arrest bail in a case involving charges under sections 302, 148, and 149 of the Pakistan Penal Code 1860, arising from an F.I.R. registered in 1996. The prosecution alleged that the applicant and others murdered the deceased, Liaquat Ali, due to previous enmity. While co-accused were previously tried and acquitted, the applicant had remained an absconder until his surrender in 2002. The core legal question was whether the applicant was entitled to bail given that the eye-witnesses, in the trial of the co-accused, failed to name the specific assailants, thereby necessitating further enquiry into his guilt. The Court held that since the eye-witnesses had deviated from the F.I.R. by not naming the assailants during the previous trial, the applicant's case required further enquiry. The Court established the principle that where prosecution witnesses have previously given testimony on oath that deviates from the F.I.R. by omitting the names of the accused, the defense is entitled to rely on such depositions to establish grounds for further enquiry, justifying the grant of bail.
- Does the acquittal of co-accused based on testimony that fails to name the assailants entitle a subsequent accused to bail on the grounds of further enquiry?
- Can an accused rely on depositions recorded on oath in a previous trial of co-accused to support a bail application?
- Does the status of an absconder automatically disentitle an accused to bail when the prosecution's case requires further enquiry?
- Section 302, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
ORDER
1. ' Applicant Qalandar Bux is facing trial for an offence punishable wider sections 302, 148 and 149, P.P.C. Registered at Police Station Taluka Larkana (F.I.R. No,138 of 1996).
2. ' The case of prosecution as disclosed in the F.I.R., briefly stated is that complainant Arbab was coming to Larkana alongwith his uncle deceased Liaquat Ali, P.Ws. Qalab Ali, Dodo and Sarang when they were intercepted by seven assailants namely Nazar Muhammad, Qalandar Bux, Soohanro and Attaullah armed with guns, Piyaro and Paliyo armed with pistols and Muhammad Siddique armed with rifle. They challenged the complainant party declaring that they would avenge the murder of their cousins Sobdar and Muharram. Nazar Muhammad fired from his gun at Liaquat Ali who fell down and then the other two accused, Qalandar Bux and Piyaro also fired from their guns directly at the deceased. Liaquat Ali died on the spot.
3. Accused Nazar Muhammad and Muhammad Siddique were arrested and put on trial, P.Ws. Arbab, Dodo, Qalab Ali and Sarang were examined by the trial Court and upon assessment of entire evidence the accused were acquitted of the charge. The applicant remained absconder and subsequently surrendered on 7-11-2002 to the Sessions Court whereafter he was taken into custody. As per learned counsel for the applicant the charge has not yet been framed.
4. ' I have heard learned counsel for the applicant and learned Assistant Advocate-General for the State.
5. ' The main ground for bail advanced on behalf of the applicant is that on the same allegations the evidence recorded as the trial led to acquittal of other two accused and the case of present applicant calls for further enquiry. Mr. Ali Azher Tunio learned Assistant Advocate-General opposed the bail plea on the ground that the applicant remained fugitive from law and fugitive normally loses some of his rights ordinarily available to him including right of bail.
6. ' I have gone through the deposition recorded at the trial. Admittedly, the eye-witnesses in their evidence have simply alleged that seven persons emerged and fired at deceased Liaquat Ali. No specific name has been given in the depositions which have been recorded on oath by the trial Court. Although in the F.I.R. Previous enmity arising out of murders of two cousins of complainant namely Sobdar and Muharram is manifestly described, none was nominated at the trial. No doubt the previous trial and the evidence and findings in consequence thereof are confined to those accused persons facing the trial but the effect of the above mentioned depositions would be that the witnesses would be confronted with this intentional deviation, since they have completely eliminated the names of all the assailants. If the prosecution can rely on the statements recorded by police under section 161, Cr.P.C. The accused can equally press into service the statements recorded on oath by the Court both taken down in absence of the accused. The allegations against the applicant in the circumstances require further enquiry.
7. ' The application is allowed. The applicant be released on furnishing surety in the sum of Rs,300,000 and executing P.R. Bond in the like amount to the satisfaction of the trial Court.