GHULAM HUSSAIN vs THE STATE
This matter concerns a post-arrest bail application filed by the petitioner, Ghulam Hussain, who was accused in a case registered under Sections 302, 364, and 201 of the Pakistan Penal Code 1860. The core legal question was whether the petitioner was entitled to the concession of bail given the evidentiary gaps in the prosecution's case, specifically the unexplained delay in lodging the F.I.R. and the lack of direct evidence linking the petitioner to the alleged crime after a specific point in time. The Court observed that the investigating officers admitted there was no witness testimony placing the deceased with the petitioner after the Qul Khawani event, nor was there evidence of the petitioner causing any injury. Consequently, the Court held that the petitioner's case fell within the scope of further inquiry. The Court granted bail, establishing the principle that where the prosecution fails to provide sufficient evidence to establish a prima facie case or link the accused to the offense, and where the trial has not commenced despite the accused being in judicial custody, the accused is entitled to the concession of bail.
- Is an accused entitled to bail when the prosecution fails to provide evidence linking the accused to the deceased after a specific event?
- Does an unexplained delay in lodging an F.I.R. constitute grounds for further inquiry in a bail application?
- Can bail be granted when the trial has not commenced and the case against the accused requires further investigation?
- Section 302, Pakistan Penal Code 1860
- Section 364, Pakistan Penal Code 1860
- Section 201, Pakistan Penal Code 1860
ORDER
' The prosecution story as per F.I.R. Is that Haji Sultan Mahmood, complainant submitted application before police on 27-8-2002 that his son Allah Jawaya was serving with Ghulam Hussain (petitioner/ accused) and Talib Hussain co-accused but they did not pay him salary, therefore, he left their service. He mentioned that Allah Bachaya had suspicion that his son (Allah Jawaya) had illicit relations with his wife. He stated that about 1-1/2 months back Abdul Aziz accused took Allah Jawaya from the house of complainant in the presence of Muhammad Ramzan and Nazir Khan P.Ws. The complainant stated that they had seen Allah Jawaya in the Qul Khawani of a woman in village Kot Kora but later on Allah Jawaya was not traced. He submitted application for registration of case against petitioner, Talib Hussain and Aziz under section 364, P.P.C. The petitioner was arrested in this case on 16-9-2002. Hence, this bail application.
2. I have heard the arguments and perused the record.
3. Learned counsel for the petitioner submits that there is delay of 1-1/2 months in lodging the F.I.R.
Which has not been explained by prosecution and it makes prosecution story doubtful. Further submits that during investigation Talib Hussain was found to be innocent. He contended that there is no evidence on record that Allah Jawaya remained with accused even after the Qul Khawani in village Kot Kora. He further contended that there is no evidence regarding illicit relations of Allah Jawaya with the wife of Allah Bachaya, and that petitioner is in judicial lock-up since 16-9-2002 but trial has not commenced so far, therefore, he deserves concession of bail.
4. On the other hand learned counsel for the State has opposed this application on the grounds that accused took Allah Jawaya from the house of complainant and thereafter they killed him.
5. I have considered the submissions made by the learned counsel for the parties with care.
6. As mentioned above occurrence took place about 1.-1/2 months before the registration of this case. Sajid Hasan, Inspector/S.H.O. And Parvez Iqbal S.-I. (Investigating Officers) are present in Court and submit that according to statements of Muhammad Siddique and Muhammad Nazir P.
Ws. Abdul Aziz, accused fired at the deceased, killed him and threw his dead body in Mailsi Canal and Ghulam Hussain petitioner was present with him at the relevant time. Further submit that none of the witnesses made statement that he had seen Allah Jawaya with. The accused after Qul Khawani in village Kot Kora. They also submit that Talib Hussain co-accused was found innocent during investigation. The petitioner is in judicial lock-up since 16-9-2002 but trial has not commenced so far. As mentioned above according to Investigating Officer none saw Allah Jawaya going with the petitioner after Qul Khawani in village Kot Kora and he did not cause any injury on his person. So his case is that of further inquiry. In these circumstances without going into merits of the case, I find it a fit case for the grant of bail to the petitioner, therefore, heis allowed bail (in case F.I.R. No,316 of 2002 under sections 302, 364 and 201, P.P.C. Registered at Police Station Khairpur Tamewali) subject to furnishing security in the sum of Rs,2,00,000 (Two hundred thousand rupees) with two sureties each in the like amount to the satisfaction of trial Court.