Babul alias Babu V. The State,
Bench: Muhammad Kamran Khan Malakhail
📝 AI Summary — Plain-Language Overview
This case is about a bail application in a murder case in Balochistan. The victim, Ali Bakhsh, was found dead with bullet wounds, and the initial police report (FIR) was registered against unknown persons, since no one witnessed the killing. The applicant, Babul alias Babu, was never named in the original FIR. His name only came up 45 days later, through a supplementary statement given by the victim's brother, who himself had not witnessed the murder. No weapon or incriminating evidence was recovered from Babul, and no clear link was established between him and the alleged motive (an old tribal enmity involving a kidnapping).
The trial court had earlier refused him bail, but the Balochistan High Court took a different view. It held that at the bail stage, courts should not deeply examine evidence, only assess whether the case appears to need further inquiry. Since the only evidence against Babul was a delayed, secondhand statement with no direct proof, the court found this was enough doubt to justify bail under Section 497(2) of the Criminal Procedure Code, which allows bail when further inquiry into guilt is needed.
The court also clarified that the common practice of avoiding bail decisions once a murder trial is imminent is not an absolute legal bar—an accused with a genuine right to bail cannot be denied it. Babul was therefore granted bail.
یہ کیس بلوچستان میں قتل کے ایک مقدمے میں ضمانت کی درخواست سے متعلق ہے۔ مقتول علی بخش کو گولیوں کے زخموں کے ساتھ مردہ پایا گیا تھا، اور ابتدائی پولیس رپورٹ (ایف آئی آر) نامعلوم افراد کے خلاف درج کی گئی تھی، کیونکہ قتل کا کوئی چشم دید گواہ موجود نہیں تھا۔ درخواست گزار، بابل عرف بابو، کا نام اصل ایف آئی آر میں کہیں شامل نہیں تھا۔ اس کا نام 45 دن بعد صرف مقتول کے بھائی کے ایک ضمنی بیان کے ذریعے سامنے آیا، جو خود بھی قتل کا عینی شاہد نہیں تھا۔ بابل سے نہ تو کوئی ہتھیار برآمد ہوا اور نہ ہی کوئی ایسا ثبوت ملا جو اسے جرم سے جوڑتا ہو، اور نہ ہی اس کا مبینہ محرک (ایک پرانی قبائلی دشمنی جس میں اغوا کا واقعہ شامل تھا) سے کوئی واضح تعلق ثابت ہو سکا۔
ٹرائل کورٹ نے اس سے قبل اس کی ضمانت مسترد کر دی تھی، لیکن بلوچستان ہائی کورٹ نے اس معاملے کو مختلف نظر سے دیکھا۔ عدالت نے قرار دیا کہ ضمانت کے مرحلے پر عدالت
Generated from the full judgment text below — not a substitute for reading the actual opinion.
2015 M L D 1694
[Balochistan]
Before Muhammad Kamran Khan Mulakhail, J
BABUL alias BABU ---Applicant
versus
The STATE---Respondent
Crl. Bail Application No. 4 of 2015, decided on 10th February,2015.
Criminal Procedure Code (V of 1898) ---
----S. 497(2) ---Penal Code (XLV of 1860), Ss.302 & 34--- Qatl-i-amd, common intention---Bail, grant of ---Further inquiry ---Accused was not nominated in the FIR in any capacity whatsoever, but his name surfaced in the case for the first time through a supple mentary statement made by the brother of the deceased under S.161, Cr.P.C.--- Brother of the deceased was not the eye - witness of the occurrence ---None other had witnessed the occurrence ---No bar existed under law to grant bail at any stage, provided accused had made out a case of further inquiry ---Deeper appreciation of evidence being neither permissible, nor warranted at bail stage, tentative assessment of record suggested that, prima facie case against accused, called for further inquiry into his guilt entitling him to be admitted to bail---Accused was admitted to bail, in circumstances.
Muhammad Ismail v. Muhammad Rafique PLD 1989 SC 585 ref.
Ghulam Azam Qambrani for Applicant.
Miss Sarwat Hina, Additional Prosecutor General for the State.
Date of hearing: 3rd February, 2015.
ORDER
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---The applicant Babul alias Babu seeks post -arrest bail in FIR No. 14 of 2014 registered with Police Station Wadh, Khuzdar District under sections 302- Q&D and 34 of the Pakistan Penal Code, 1860 ("P.P.C.").
Earlier the application filed for the same relief was rejected by the learned Sessions Judge, Khuzdar vide order dated 12 -12-2014.
2. Brief facts of the case are that on the report of the complainant SI/SHO the FI R No.14 of 2014 was lodged on 15- 5-2014, wherein it was alleged that on the stated date, time and place, he was on area patrol with other police officials, when he saw a dead body lying near the agricultural land with a bandolier tied around his waist, wit h bullet wounds each on his forehead, right and left leg. On search from the pockets of the deceased one mobile phone, a wallet, a CNIC and Rs.300 were recovered, whereas from the bandolier five magazines with thirty live rounds and eighty six more live ca rtridges were recovered. The complainant further alleged in the FIR that it was suspected that Kalashnikov of the deceased was perhaps stolen after being murdered. With these averments the FIR was lodged against unknown persons.
3. At the outset learned counsel for the applicant contended that the applicant has not been nominated in the FIR nor any specific role has been assigned to him. He added that nothing has been recovered from the applicant, moreover there is no direct or indirect circumstantial evidence available on the record, which could suggest his involvement in the commission of the offence. He maintained that the applicant has been nominated by the brother of the deceased that too after lapse of forty five days through supplementary statement, which has no evidentiary value. He asserted that the learned trial court has failed to appreciate the facts and circumstances of the case in its true perspective and has declined the bail to the applicant, despite the fact that there is no incriminating material available on record which could in any manner connect the applicant with the commission of the alleged offence. He added that the alleged disclosure of the applicant was not followed by any recovery, therefore, is unbelievable. He argued vehemently that despite the fact that the applicant was arrested on 3 -10-2014, while the challan against him has already been submitted before the trial court and his custody is not required for further investigation. He added that the deceased had previous enmity, because as per the statement of the deceased's brother, the deceased Ali Bakhsh allegedly kidnapped a women of Samalani tribe, whereas the applicant belongs to Lehri tribe, but the prosecution has failed to establish the applicant's connection with the all eged enmity. He asserted that in view of the fact that, the applicant's involvement in the commission of the alleged offence is yet to be proved through evidence; therefore, his case falls within the ambit of Section 497(2), Cr.P.C., which entitles him for the relief claimed herein. The learned counsel finally prayed that the commencement of trial let alone its conclusion is not in sight, therefore the applicant deserves to be admitted to bail.
4. The learned A.P.G. strongly opposed the plea of bail by contending that there is sufficient material available on record to connect the applicant with the commission of the offence. She argued that the application so filed by the applicant before the learned trial court was rightly rejected as the evidence available on record fully commensurate with the facts and circumstances of the case and the learned trial court has passed the order after appreciating the facts and circumstances of the case in its true perspective. She further maintained that the bail granting order will ultimately affect the merits of the case as the trial is in sight. She finally urged that the applicant is not entitled for grant of bail the offences committed by him are non -bailable in nature and fall within the prohibitory clause of section 497, Cr.P.C.
5. Heard.
6. Having considered the submissions made and perused the relevant material available on the record, I find that the applicant was not nominated in the FIR in any capacity whatsoever, and his name surfaced in this case for the f irst time through a supplementary statement made by the brother of the deceased under Section 161, Cr.P.C. It may be relevant to mention here that the brother of the deceased was not the eye -witnesses of the occurrence, moreover there is also no other witness to have witnessed the occurrence.
As per the argument of learned A.P.G. that the bail granting order may affect the merits of the trial which is likely to commence is concerned, there is no bar under the law of bail to grant bail at any stage provid ed petitioner has made out a case of further enquiry. The rule laid down by the Hon'ble Apex Court in case of Muhammad Ismail v. Muhammad Rafique (PLD 1989 SC 585), is a rule of propriety and practice, which cannot be taken as a bar for the grant of bail if an accused has made out a case for the same. The Hon'ble Supreme Court in the judgment supra, while alluding to this practice noted that "it is well known practice of the superior Courts of Pakistan that when a murder case is fixed for hearing ordinarily the bail applications are not decided on merits and the matter is often left to the discretion of the trial Judge". But the Court in the operative part of the same judgment attended to the nature and scope of this practice of the Court by holding as follo ws:--
"The question then arises; whether, subsection (2) of section 497, Cr.P.C. would have operation notwithstanding the afore -stated practice of this Court. Much discussion is not necessary in this behalf. When an accused person becomes entitled as of right to bail under subsection (2) of section 497, Cr.P.C. the same cannot be withheld on the ground of practice; because, the latter is relatable to exercise of discretion while the former is relatable to the exercise and grant of right."
In view of t he above discussion, I am of the considered opinion that, since the deeper appreciation of evidence is neither permissible nor warranted at bail stage, however, tentative assessment of record suggests that, prima facie case against the accused/applicant calls for further inquiry into his guilt entitling him to be admitted to bail.
Consequently, this application is allowed and the applicant Babul alias Baboo son of Naik Muhammad, caste Lehri, is admitted to bail in case FIR No.14 of 2014 registered with police station Wadh, District Khuzdar under sections 302- Q&D and 34, P.P.C., subject to applicant's furnishing bonds in the sum of Rs.100,000 with two sureties in the like amount, to the satisfaction of the learned trial Court, he shall be released on bail.
Needless to observe the observations made in this order are tentative in nature and shall not affect the merits of the trial. However, before parting with the order, I would like to observe that if the petitioner in any manner tries to misuse the conce ssion of bail, it would be open for the trial Court to cancel his bail after issuing him the requisite notice.
HBT/4/Bal Bail granted.