GULZAR and anothers vs THE STATE
This matter arises from a criminal bail application filed on behalf of applicants Gulzar and Hussain Bux seeking post-arrest bail in a case registered under sections 302 and 34 of the Pakistan Penal Code 1860. The core legal question concerns whether the applicants are entitled to post-arrest bail when the FIR is lodged against unknown persons, the names of the applicants do not appear therein, no identification test was conducted, no incriminating recovery was made from them, and the primary evidence against them consists of the circumstance of being 'last seen'. The court held that the applicants successfully made out a case for further inquiry under the Code of Criminal Procedure 1898 and accordingly granted post-arrest bail subject to the furnishing of required surety bonds. The key principle laid down is that where the prosecution's case rests on weak circumstantial evidence such as 'last seen' without corroborative recovery or identification, and no specific role of firing is attributed despite alleged weapons, the accused is reasonably entitled to the concession of bail pending trial.
- Are accused persons entitled to post-arrest bail when their names do not appear in the FIR and the primary evidence against them is limited to 'last seen' testimony?
- Does the absence of incriminating recoveries and identification parades in a murder case create a case for further inquiry under criminal law?
- Whether post-arrest bail can be granted when the accused are charged under sections 302 and 34 of the Pakistan Penal Code but no specific role of firing is attributed to them?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
ORDER
1. ' By this order I intend to dispose of Criminal Bail Application No.482 of 2003 filed on behalf of applicant Gulzar and Hussain Bux in a case bearing crime F.I.R. No.17 of 2003, registered at Police Station Johi, District Dadu, for an offence under section 302,34, P.P.C.
2. ' The bail plea of the applicants was declined by the learned Sessions Judge, Dadu vide order dated 26-8-2003.
3. ' The prosecution story as unfolded in the F.I.R. Is that the complainant is a Hari and have five sons amongst them Nasrullah is elder aged about 26/27 years. On 1-4-2003, at 2-00 p.m. Complainant's son Nasarullah left the house and did not return back home till evening. On 2-4-2003 the complainant alongwith his relatives made search of Nasrullah but could not find his clue. On 3-4- 2003 the dead body of Nasarullah was found in the graveyard adjacent to the village. At 4-00 p.m.
4. Complainant found the dead body of deceased Nasarullah having sustained gun shot injury on his chest. Thereafter, the complainant alongwith P.Ws. Removed the dead body of his son to Civil Hospital Dadu whereafter he lodged F.I.R. At Police Station disclosing that some unknown persons upon some dispute caused him gun shot injury and killed his son Nasarulah under suspicion.
5. ' The investigation followed and in due course the applicants were sent up to stand trial in the Court of learned Sessions Judge, Dadu.
6. ' I have heard the learned counsel for the respective parties and perused the record. It has been contended by the learned counsel for the applicants that the case against the applicants is false and they have been involved in the background of enmity and suspicion. It has also been contended that the name of the applicants does not find place in the F.I.R., no identification test had taken place in presence of the Magistrate', nothing incriminating is secured from the possession of applicants. According to the learned counsel the only piece of evidence against the applicants is the evidence of last seen. He has referred to the cases' of (i) Muhammad Jamil v.
7. Shaukat Ali and another 1996 SCM R 1685, (ii) Abdul Salem v. The State 1998 SCM R 1578 and (iii) Mir Hazar Malik v. The State 1999 SCM R 1377 in support of his contentions.
8. ' As against the arguments of the learned counsel for the applicants it has been contended by the learned counsel for the State that the dead body of deceased was recovered after 2 days from the date of incident in jungle. It has also been contended that the witnesses Roshan and Nazeer in their statements recorded under section 161, Cr.P.C. Have implicated but at the place of occurrence no dragging marks were noticed. The counsel further argues that the accused though were disclosed to be armed with guns but no role of firing at the deceased is attributed to them. In this background the learned counsel for the State argues that it is a case which calls for further inquiry.
9. I have considered the submissions of the learned counsel for the respective parties and perused the record which reveals that learned counsel for the applicants has been able to make out a case for bail which accordingly is granted provided they fttrnish surety in the sum of Rs.2,00,000 (two lac) and P.R. Bond in the like amount to the satisfaction of the trial Court.
10. ' Criminal Bail Application No.482 of 2003 stands disposed of.