Haday Khan V. The State,
Bench: Abdullah Baloch
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This case concerns a bail application filed by Haday Khan, who was accused in a 1996 murder case registered under Sections 302/34 of the Pakistan Penal Code (murder committed with common intention). The FIR alleged that the accused, along with several others, had shot and killed a man named Rindo while he was sleeping at his home, with old enmity cited as the motive.
After investigation, the police had submitted the case for trial, and the applicant was in judicial custody while the trial proceeded. His earlier bail request had been rejected by the trial court. He then approached the Balochistan High Court, arguing that he was innocent, unaware of the FIR for years, had voluntarily surrendered once he learned of it, had no specific role assigned to him, and that no direct or indirect evidence linked him to the killing. He also pointed out that the main accused had already been acquitted through a compromise.
The State opposed bail, arguing the offence was serious and carried the death penalty or life imprisonment, and that evidence existed against him.
The High Court held that since guilt or innocence could only be determined after the trial court recorded evidence, and given the case appeared to require further inquiry, bail could not be withheld merely because the applicant had remained absconding for a long period. The court granted him bail on surety of Rs. 200,000, clarifying that these observations were tentative and would not affect the final outcome of the trial.
یہ مقدمہ حیدی خان کی جانب سے دائر کی گئی ضمانت کی درخواست سے متعلق ہے، جس پر 1996 کے ایک قتل کے مقدمے میں تعزیراتِ پاکستان کی دفعہ 302/34 (مشترکہ ارادے کے تحت قتل) کے تحت الزام عائد کیا گیا تھا۔ ایف آئی آر کے مطابق ملزم نے دیگر کئی افراد کے ہمراہ رِنڈو نامی شخص کو اس وقت گولی مار کر قتل کیا جب وہ اپنے گھر میں سو رہا تھا، اور اس کا سبب پرانی دشمنی بتائی گئی تھی۔
تفتیش مکمل ہونے کے بعد پولیس نے مقدمہ ٹرائل کے لیے پیش کر دیا تھا، اور درخواست گزار ٹرائل کے دوران عدالتی تحویل میں تھا۔ اس کی پہلے دائر کی گئی ضمانت کی درخواست ٹرائل کورٹ نے مسترد کر دی تھی۔ اس کے بعد اس نے بلوچستان ہائی کورٹ سے رجوع کیا اور موقف اختیار کیا کہ وہ بے قصور ہے، کئی سالوں تک ایف آئی آر سے لاعلم رہا، جیسے ہی اسے اس بارے میں علم ہوا اس نے خود کو رضاکارانہ طور پر حوالے کیا، اس کا کوئی مخصوص کردار متعین نہیں تھا، اور قتل سے اس کا کوئی براہ راست
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PLJ 2019 Cr.C. 652 [Balochistan High Court, Sibi Bench] Present: ABDULLAH BALOCH , J. HADAY KHAN --Applicant versus STATE --Respondent Crl. Bail Appln. No. (s)139 of 2018, decided on 26.10.2018. Criminal Procedure Code, 1898 (V of 1898) -- ----S. 497(2) --Pakistan Penal Code, (XLV of 1860), Ss. 302/34 --Bail after arrest, grant of--Further inquiry -- Investigation, challan was submitted, the applicant (accused) remanded to judicial custody, while after taking cognizance the trial has commenced w ith the trial of the case --Held: Guilt or innocence of the applicant is yet to determine by the trial Court after recording evidence, hence due to long absconsion concession of bail cannot be withheld --Counsel for the applicant (accused) has successfully m ade out a case of further inquiry, Court inclined to accept the instant application and grant bail to the applicant. [P. 653] A & B Mr. Rizwan Ali Soomro, Advocate for Applicant. Mr. Jamil Akhtar, Additional P.G. for State. Date of hearing: 25.10.2018. O RDER This order disposes of Criminal Bail Application No. 139 of 2018, whereby the applicant, Haday Khan son of Allah Yar, is seeking bail in FIR No. 27 of 1996 dated 6th August 1996, Levies Station, Tamboo under Section 302 read with Section 34, PPC.
2. Facts of the case are that on 6th August 1996 lodged FIR No. 27 of 1996 on the complaint of Elahi Bakhsh under above mentioned Sections at Levies Station Tamboo to the effect that at the night of incident his uncle, namely; Rindo son of Kheri was sleeping in his home while accused Kamal, Khair Jan, Shah Nawaz, Tangwani son of Zangi, Haday son of Allay Yar and Bari son of Hotan by Caste Shalwani Bugti committed the murder of his uncle by means of firing, the motive behind the incident was stated that there is o ld enmity.
3. After usual investigation, challan was submitted in the trial Court and the trial was commenced. In the meantime, the applicant (accused) filed an application for grant of post arrest bail the learnedAdditional Sessions Judge, Naseerabad at D era Murad Jamali (hereinafter referred as, “the trial Court”), but the same was rejected, vide order dated 16 th October 2018. Whereafter, the instant application has been filed.
4. Learned counsel for the accused -applicant contended that the accused -applic ant is innocent and has not committed any offence whatsoever in nature; that in the instant case the main accused has been acquitted of the charge on the basis of compromise; that accused -applicant was not aware about the FIR and his absconsion was neither deliberate nor intentional, when he came to know about the FIR lodged against him he has surrendered himself at the mercy of the Court; that no specific role has been assigned to the accused -applicant and he has been dragged in the instant case just to ha rass him; that neither there is any eye- witness that accused -applicant had killed by the fire of the applicant nor any direct or indirect evidence is available against him with the commission of alleged offence even since 1996; hence the case of applicant (accused) falls within the ambit of further inquiry; that investigation in the matter has been completed and applicant (accused) were remanded to judicial custody, meaning thereby that he is not required for the purpose of investigation or probe as such, the applicant (accused) is entitled for concession of bail.
5. Learned Additional Prosecutor General stated that the applicant -accused is involved in heinous crime of heinous murder, thus the alleged offences are not only non -bailable, but also carries punishment for death or life imprisonment; that sufficient incriminatory evidence is available on record connecting him with the commission of crime, thus he is not entitled for grant of bail.
6. Heard the learned counsel for the parties and with their valuable assistance gone through the record. Besides, after conducting investigation in the matter, challan of the case has been submitted in the trial Court, , the applicant (accused) has been remanded to judicial custody, while after taking cognizance the trial has commenced with the trial of the case. The guilt or innocence of the applicant is yet to determine by the trial Court after recording evidence, hence due to long absconsion concession of bail cannot be withheld.
7. Perusing the record tentatively, the counsel for the applicant (accused) has successfully made out a case of further inquiry, therefor, I am inclined to accept the instant application and grant bail to the applicant (accused) subject to furnishing surety in the sum of Rs. 200,000/ - (Rupees tw o Hundred Thousand) with P.R. bond of the like amount to the - satisfaction of the trial Court or Deputy Registrar of this Court. The observations made hereinabove are tentative in nature and same shall not influence the merits of the case. (A.A.K.) Bail allowed