FAROOQ alias PAPU vs TH STATE
This is a petition for post-arrest bail filed by the petitioner, Farooq alias Papu, in connection with F.I.R. No. 431 of 2002, registered under Section 302/34 of the Pakistan Penal Code 1860. The petitioner was accused of murder following a house trespass incident. The core legal question was whether the petitioner was entitled to bail given the evidentiary gaps in the prosecution's case. The Court observed that the petitioner was not nominated in the initial F.I.R., the weapon of offense was not recovered from him, and he was not subjected to an identification parade despite the complainant and witnesses claiming to have identified him much later. Furthermore, the Court noted that the trial had not commenced despite the petitioner being incarcerated for over a year, and there was no likelihood of an early conclusion. Holding that bail cannot be withheld as a form of punishment and that the case required further inquiry, the Court granted the petition. The key principle laid down is that where there is a significant delay in trial and evidentiary deficiencies, such as the absence of an identification parade and recovery, the accused is entitled to bail pending trial.
- Does the failure to hold an identification parade for an accused not named in the F.I.R. constitute grounds for further inquiry in a bail application?
- Can bail be withheld as a form of punishment when the trial has not commenced for a significant period?
- Is the absence of recovery of the weapon of offense a relevant factor in granting post-arrest bail?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
' Petitioner Farooq alias Papu son of Ismail seeks after arrest bail in case F.I.R. No. 431 of 2002, dated 18-10-2002 under Section 302/34, P.R.C. Registered at P.S. Aroop, Gujranwala at the instance of Muhammad Munir with the allegation that three unknown persons description give in the trespassed into the house of the complainant. One stood outside the math while two entered into the room One was armed with pistol. The complainant and his brothers woke up. The person armed with pistol fired at Muhammad Azim, brother- in-law of the complainant hitting at the back of his head and the accused fled away from the spot.
2. The petitioner was arrested on 18-10-2002 and sent in judicial lock-up on 28-12-2002. He was declined after arrest bail by the learned Addl. Sessions Judge, Gujranwala vide order dated 2-1- 2004. Hence this petition.
3. Learned counsel for the petitioner and for the State have been heard exhaustilvely and record has been perused.
4. Admittedly, the weapon of offence was not recovered from the petitioner and he was not nominated in the F.I.R. He was named as accused by the complainant in supplementary statement recorded on 7-8-2003 stating therein that he had identified the present petitioner who threatened him for dire consequences when he was escaping from the place of occurrence. During the investigation, statements of Muhammad Azhar and Akhlaq Ahmad, P.Ws. Were got recorded on 21- 12-2002 stating therein that they had identified the present petitioners running from the place of occurrence armed with pistol. There is no explanation/reason that as to why the complainant or these witnesses who can be called "Wajtakkar" not informed the police soon after registration of the case and the petitioner was also not put to the identification parade. The weapon of offence has also not been recovered from him. Co-accused have not so far been arrested and the petitioner is behind the bars for the last one year but the trial has not commenced for one reason or the other. There is no likelihood for early conclusion of the trial, therefore, the bail cannot be withheld as a punishment. The case of the petitioner is of further inquiry.
' Resultantly, he is admitted to bail subject to his furnishing of bail bonds in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of the Trial Court.