2019 P Cr. L J 1618
[Balochistan]
Before Rozi Khan Barrech, J
BABOO---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No. 276 of 2019, decided on 28th June, 2019.
(a) Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Bail, grant of---Un-witnessed
occurrence---Contradiction in medical and ocular evidence---Scope---Accused was charged, in an
unwitnessed occurrence, for committing murder on the grounds that some foot prints from the place of
occurrence went towards his house and that deceased had filed a complaint under Ss. 107 & 151, Cr.P.C.
against accused which was pending before Magistrate---Dead body was found on the ground leading to
the nearby village and residence of the accused---Prosecution had alleged that applicant had threatened
the deceased of dire consequences---No one had witnessed the occurrence, which took place at odd hours
of the night---Weapons of offence found at the place of occurrence were lathis and iron rods, but the
record was silent about any fingerprints obtained by the investigating agency on the weapons of offence,
inspite of the fact that fingerprints were available on the same---Medical evidence showed sharp weapon
injuries, but the complainant alleged in his report that iron rods and dandas were recovered from the
place of occurrence---Prima facie, case against accused was that of further inquiry---Investigation had
already been completed and accused was not required for further investigation---Application for grant of
bail was accepted, in circumstances.
(b) Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Bail---Principle---Bail was not to be
ordinarily granted to an accused in a murder case where trial has commenced, when there is possibility of
prejudicing the merits of the case or there is a likelihood of absconsion of the accused---Holding of trial
does not create any bar for the superior court who has ample jurisdiction to grant the bail to the accused
if the accused is found entitled irrespective of the fact that the trial has commenced and the evidence has
begun or it has been recorded or concluded.
(c) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Scope---Person who is entitled to the grant of bail is not to be kept in the jail, as even
a single day of detention of an innocent accused cannot be compensated, after his acquittal at the
conclusion of the case.
Khalid Ahmed Kubdani for Appellant.
Habib-ur-Rehman for the Complainant.
Saeed Ahmed Kakar, State counsel.
Date of hearing: 24th June, 2019.
ORDER
ROZI KHAN BARRECH, J .---Through instant application the applicant/accused seeks post-arrest
bail under section 497, Cr.P.C. in case FIR No. 04 of 2019 registered with Levies Thana Liyari under
sections 302, 147 and 149, P.P.C.2019 P Cr https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=201...
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Earlier the applicant/accused moved an application in the court of learned Additional Sessions Judge,
Uthal which was rejected vide order dated 18.05.2019, hence this application.
2. Briefly stated facts of the case are that a case was registered vide FIR No. 04 of 2019 on 15.04.2019
on the complaint of one Muhammad alleging therein that on 02.04.2019 his brother Saleh Muhammad
went on his motorcycle and did not return till night. On the next date i.e. 03.04.2019 he received
information that the dead body of his brother is lying near coastal highway. The complainant reached at
the place of occurrence with his other relatives, where he found the dead body of his brother Saleh
Muhammad tying in a pool of blood. His motorcycle was also lying on the ground with Lathi and iron
rod. At the place of occurrence many foot prints and prints of the motorcycle were also found, out of
which some foot prints led to the house of the applicant/accused Baboo son of Ali Bakhsh. Consequently
the FIR was lodged against the applicant/accused and others.
After registration of the FIR the applicant/accused was arrested and challan was submitted before the
trial court.
3. Learned counsel for the applicant/accused argued that there is no eye-witness of the alleged
occurrence; that no recovery whatsoever has been effected from the accused/applicant; that the
accused/applicant has been nominated in the instant case on the basis of previous enmity; that the
veracity of the alleged footprints gathered from the place of occurrence leading to the house of the
applicant/accused will have to be yet proved by the prosecution during trial, and the prosecution will be
required to produce evidence in this respect, which is a matter purely relating to the trial, and same
cannot be considered, because, at this stage, only a tentative assessment of the evidence available on
record is to be made by the court. He further argued that the applicant/accused has been shifted to
judicial custody, therefore, he is no more required for the purpose of investigation. He finally urged that
in the given facts and circumstances of case, the case of applicant/accused comes within the ambit of for
further inquiry, therefore he is entitled for concession of bail.
4. Conversely, learned counsel appearing for the complainant strongly opposed the contentions raised
by learned counsel for the applicant/accused and argued that the accused/applicant is involved in a
murder case and the punishment prescribed for the said offence is either death penalty or imprisonment
for life and that the evidence produced in this behalf by the prosecution is reliable against the
applicant/accused in the instant case. He further argued that prior to the incident the deceased filed a
complaint under sections 107 and 151, Cr.P.C. before the learned Judicial Magistrate Uthal and during
pendency of the complaint the incident has taken place. According to learned counsel the trial court has
rightly dismissed the application filed by the applicant/accused for grant of bail as in the given
circumstances of the case, the applicant/accused is not entitled for grant of bail. He finally urged for
dismissal of the application.
The learned State counsel also opposed the application.
5. I have heard the arguments advanced by learned counsel for the parties and also perused the
available record.
6. The accused/respondents was charged in the case in hand on the basis that a complaint under
sections 107 and 151, Cr.P.C. has been filed by the deceased (Saleh Muhammad) against the
applicant/accused prior to the alleged incident. The applicant/accused made disclosure before the police
during inquiry of the said complaint, whereby he implicated himself as well as other co-accused persons,
while on the other hand the dead body was found on the ground leading to the nearby village and
residence of the applicant/accused. The prosecution has also alleged that the applicant/accused had
threatened the deceased for dire consequences. The record transpires that no one had witnessed the
occurrence, which took place at odd hours of the night. Weapon of offence found at the place of
occurrence are Lathis and iron rods, but the record is silent about any finger prints obtained by the
investigating agency on the weapons of offence allegedly recovered from the place of occurrence, in2019 P Cr https://www.pakistanlawsite.com/Login/PrintCaseLaw?caseName=201...
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spite the fact that finger prints were available over the same. So far as the alleged disclosure made by the
applicant/accused before the police is concerned, the same is not admissible under Article 38 of the
Qanun-e-Shahadat Order, 1984 because nothing has been recovered on the pointation of the accused and
there is no new discovery. The medical evidence apparently shows sharp weapon injuries, but the
complainant alleged in his report that iron rods and dandas were recovered from the place of occurrence.
7. As far as the motive is concerned that has to be proved firstly by the prosecution in a criminal case
and the burden of proof cannot be placed and shifted on the shoulders of the accused, therefore the
accused is not bound to explain the motive of his false implication. So, prima facie, for the purpose of
tentative assessment of bail, the case of accused is that of further inquiry. The investigation has already
been completed and the applicant/accused has been shifted to judicial custody and is no more required
for further investigation. There is no doubt or cavil to the proposition that the bail should not be
ordinarily granted to an accused in a murder case where trial has commenced, when there is a possibility
of prejudicing the merits of the case or there is a likelihood of abscondance of the accused. In the
peculiar circumstances of the instant case it is admitted fact that there is no ocular evidence and the sole
evidence which can be produced against the applicant/accused is that of weakest type of evidence i.e. the
alleged disclosure of the accused, and the question that this sole evidence can result in conviction of the
applicant/accused to the extent of awarding death sentence or not?, is still to be seen by the trial court.
Thus, I am of the considered view that holding of the trial does not create bar in the way of the superior
court who have got ample jurisdiction to grant the bail to the accused if the accused is found entitled
irrespective that the trial has commenced and the evidence has begun or it has been recorded or
concluded.
8. I would also like to add here that it is a matter of great importance for the court that a person who is
entitled to the grant of bail should not be kept in the jail, as even a single day of detention of an innocent
accused could not be compensated, after his acquittal at the conclusion of the case.
Since, the case of applicant, as discussed above, falls within the ambit of "further inquiry", therefore,
application is accepted and consequent thereto, the applicant/accused is granted bail in case FIR No.04 of
2019 of Levies Station Liyari, District Lasbela subject to furnishing surety to the tune of Rs. 500,000
with two sureties of Rs.250,000/- each in the like amount to the satisfaction of Additional Registrar of
this court/trial court.
The above observations are only tentative for the purpose of decision on this application which should
not be used for influencing the adjudication of the case by any party and these should be kept limited for
the sole purpose of this application. The trial court has obviously to decide the case upon its own merits
after application of judicial mind and independent conscience to the facts and circumstances of the case.
SA/47/Bal. Bail granted.
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