Faqir Dad V. The State,
Bench: Zaheer Ud Din Kakar
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This case involves a bail application before the Balochistan High Court by a man named Faqir Dad, who had been arrested in connection with a 2009 murder case registered under sections 302 and 34 of the Pakistan Penal Code (murder and common intention). He was seeking post-arrest bail after a trial court had already denied it.
Key facts: Faqir Dad was not named in the original police report (FIR). He was only implicated later, based on a supplementary statement given by the complainant nine days after the FIR was filed, raising the possibility that this statement was the product of deliberation rather than immediate, reliable identification. The only evidence against him was his own disclosure statement, which was not backed up by other evidence. Additionally, two co-accused in the same case had already been acquitted by the trial court. He had also been absconding for about ten years before his arrest.
The High Court granted him bail. It reasoned that where a case calls for "further inquiry" into guilt due to weak or uncorroborated evidence, bail should be granted as a right, not a favor. The court also held that the acquittal of co-accused in similar circumstances cannot be ignored when deciding bail, and that a long period of absconding does not automatically disqualify someone from bail if the case is otherwise fit for it. This judgment reinforces important bail principles: evidentiary weakness and co-accused acquittals matter, and absconding alone isn't an absolute bar to bail.
یہ مقدمہ بلوچستان ہائی کورٹ میں فقیر داد نامی ایک شخص کی ضمانت کی درخواست سے متعلق ہے، جسے 2009 کے ایک قتل کے مقدمے میں گرفتار کیا گیا تھا۔ یہ مقدمہ تعزیرات پاکستان کی دفعہ 302 اور 34 (قتل اور مشترکہ نیت) کے تحت درج کیا گیا تھا۔ ملزم نے ٹرائل کورٹ کی جانب سے ضمانت مسترد کیے جانے کے بعد گرفتاری کے بعد کی ضمانت کے لیے درخواست دی تھی۔
اہم حقائق یہ ہیں کہ فقیر داد کا نام ابتدائی رپورٹ (ایف آئی آر) میں شامل نہیں تھا۔ اسے بعد میں اس وقت ملزم بنایا گیا جب مدعی نے ایف آئی آر درج ہونے کے نو دن بعد ایک ضمنی بیان دیا، جس سے یہ امکان پیدا ہوتا ہے کہ یہ بیان فوری اور قابلِ اعتماد شناخت کے بجائے سوچ بچار کا نتیجہ تھا۔ اس کے خلاف صرف ایک ثبوت موجود تھا، یعنی اس کا اپنا انکشافی بیان، جس کی تصدیق کسی اور شہادت سے نہیں ہوتی تھی۔ مزید یہ کہ اسی
Generated from the full judgment text below — not a substitute for reading the actual opinion.
2021 Y L R 2230 [Balochistan] Before Zaheer- ud-Din Kakar, J FAQIR DAD---Applicant Versus The STATE--- Respondent Criminal Bail Application No. 209 of 2020, decided on 28th May, 2020. (a) Criminal Procedure Code (V of 1898) --- ----S. 497--- Penal Code (XLV of 1860), Ss. 302 & 34---Qatl -i-amd and common intention--- Bail, grant of ---Implication of accused on supplementary statement ---Absconsion---Acquittal of co -accused ---Further inquiry--- Scope --- Accused sought bail after arrest in a case lodged under Ss. 302 & 34, P.P.C.---Accused was not nominated in the FIR rather he was arrested on the basis of supplementary statement of complainant recorded after nine days of lodging of FIR, thus, the possibility of deliberations and consultations could not be rule d out ---Only piece of evidence against the accused was his disclosure, which prima facie was not corroborated by any other piece of evidence ---Court, while considering the bail plea of accused, could not ignore the acquittal of co -accused vis -à-vis the mer its of his case --- Accused person's absconsion of ten years could not be treated as a bar to his release on bail -- -Case of accused was one of further inquiry--- Petition for grant of bail was allowed, in circumstances. (b) Criminal Procedure Code (V of 1898) --- ----S.497--- Bail---Tentative assessment--- Scope ---Only tentative assessment of facts is required while disposing of ancillary matters like bail, etc. (c) Criminal Procedure Code (V of 1898) --- ----S. 497--- Bail---Further inquiry--- Scope ---Bail is to be allowed to an accused as of right and not by way of grace or concession in a case calling for further inquiry into his guilt. Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182; Qamar alias Mitho v. The State and others PLD 2012 SC 222 and Ehsanullah v. The State 2012 SCMR 1137 ref. (d) Criminal Procedure Code (V of 1898) --- ----S. 497 ---Bail ---Acquittal of co -accused --- Scope --- Court, while considering the bail plea of an accused, cannot ignore the acquittal of co -accused. Jam Sadiq Ali v. State 1989 P Cr.LJ 1910 and Nawab Ali v. State 2003 YLR 113 rel. (e) Criminal Procedure Code (V of 1898) --- ----S. 497--- Bail---Absconsion--- Scope ---Absconsion of an accused cannot be treated as a bar to his release on bail ---Rule that fugitive from law shall under no circumstances be enlarged on bail is not absolute if the case of an accused is otherwise found fit for bail on merits. State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322 and Mithu Pitafi v. The State 2009 SCMR 299 ref. Khalid Kubdani for Applicant. Abdul Nafay, State Counsel. Date of hearing: 21st May, 2020. ORDER ZAHEER -UD-DIN KAKAR, J. ---Through this application filed under section 497, Cr.P.C, the applicant seeks grant of post -arrest bail in case FIR No.14 of 2009 dated 14.09.2009 for offenc es under sections 302, 34, P.P.C. registered at Levies Thana, Dalbandin.
2. Facts of the case need not to be reiterated as the same have been stated in the memo of application as well as in the impugned order.
3. Plea of post -arrest bail of the applicant d id not find favour with the Additional Sessions Judge, Dalbandin, who dismissed the same vide order dated 13.05.2020.
4. Learned counsel for the applicant while arguing the matter mostly relied on the points raised in the application, whereas the learned S tate Counsel vehemently opposed the application.
5. I have heard the learned counsel for the parties and gone through the available record. It is an established principle of law that only tentative assess -ment of facts is required while disposing of the ancillary matters like bail etc. Applying the above principle, a tentative assessment of the record reveals that the occurrence was unseen. The applicant is not nominated in the FIR rather he was arrested on the basis of supplementary statement of complaina nt recorded after nine days of lodging of FIR, thus, the possibility of deliberations and consultations cannot be ruled out. The only piece of evidence against the applicant is his disclosure, which is prima facie has not been corroborated by any other pie ce of evidence, as such, the evidentiary of the same would be determined by the trial Court during trial. In this backdrop, the case of the applicant becomes one of further inquiry. It is settled law that in a case calling for further inquiry into the guilt of an accused person, bail is to be allowed to him as of right and not by way of grace or concession. A reference in this respect may be made to the cases of Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182, Qamar alias Mitho v. The State and others P LD 2012 SC 222 and Ehsanullah v. The State 2012 SCMR 1137. Besides, co -accused Abdul Majeed and Haji Shah Jehan have been acquitted of the charge by the Additional Sessions Judge, Dalbandin vide order dated 22.01.2010 by accepting application under sectio n 265- K, Cr.P.C. The Court, while considering the applicant's plea of bail, could not ignore the acquittal of co- accused viz a viz the merits of his case. In the case of Jam Sadiq Ali v. State (1989 PCr.LJ 1910) even bail before arrest of the accused was confirmed on the sole ground that his co- accused in murder charge was acquitted. In case of Nawab Ali v. State 2003 YLR 113 has observed that the case of accused was identical to the case of co -accused, who had been acquitted on similar charge and his absco ndance could not be treated as a bar to his release on bail.
6. As far as, the contention of the learned State Counsel that the applicant remained fugitive from law for about ten years, therefore, he is not entitled for concession of bail. I do not agree w ith the contention of learned State Counsel for the reasons that it is settled principle that the abscondance of an accused could not be treated as a bar to his release on bail. The rule that fugitive from law shall under no circumstances be enlarged on ba il is not absolute if the case of an accused is otherwise found fit for bail on merit and that bail cannot be refused if he had remained an absconder. In this regard, reference can be made to the case State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322 and Mit hu Pitafi v. The State 2009 SCMR 299.
7. For the above reasons, the application is allowed and the applicant Faqir Dad son of Suleman is admitted to post- arrest bail in case FIR No.14 of 2009 14.09.2009, registered at Levies Thana, Dalbandin, District Chaghi, subject to his furnishing surety bonds in the sum of Rs.300,000/ - (Rupees three hundred thousand only) with one surety in the like amount to the satisfaction of Additional Registrar of this Court or the trial Court. The observations made herein -above are tentative in nature and shall not prejudice the case of either party before the trial Court. SA/152/Bal. Bail granted.