State v Faiyaz [2008] FJMC 15; Criminal Case No 701 of 2008 (30 September 2008)

IN THE RESIDENT MAGISTRATES’ COURT
AT LAUTOKA
IN THE WESTERN DIVISION

CRIMINAL CASE NO.: 701 of 2008

STATE

V

MOHAMMED FAIYAZ s/o Mohammed Sahib

Prosecution: Mr. L. Sovau
Accused: Mr. Iqbal Khan

Date of Hearing: 30th September, 2008
Date of Ruling: 30th September, 2008

RULING ON APPLICATION FOR BAIL

[1] The accused is charge with the offence of Murder. The charge reads as follows:

STATEMENT OF OFFENCE

MURDER: Contrary to Section 199 and 200 Penal Code, Cap 17.

PARTICULARS OF OFFENCE

MOHAMMED FAIYAZ s/o Mohammed Sahib alias Babu between 23rd day of September and 24th day of September, 2008 at Lautoka in the Western Division, murdered MOHAMMED FAIYUM s/o Mohammed Allam.

[2] The accused appeared before me on 25/09/08 when he was unrepresented although Mr. Iqbal Khan by a letter had informed the Court that he will be appearing on his behalf. I adjourned this matter till today and in the meantime the accused was remanded in custody.

[3] I transferred this case to the Lautoka High Court under Section 223 and it would be called before it on 03/10/08.

[4] Mr. Khan has made an application for bail and the prosecution is objecting to the application for bail. In raising the objections for bail the prosecution has relied on an affidavit of Deputy Inspector Davendra Vijay which was filed on 25/09/08. The gist of the prosecutions objections are that the accused is charge with a very serious offence and if granted bail his chances of appearing in Court would be quite slim because of the seriousness of the offence that he is charged with. The prosecution has further submitted that it has a very strong case and if found guilty the accused will be imprisoned for life. The prosecution has also submitted that it is in the interest of the accused that he shall be remanded in custody and the tension is very high at Tomuka where the accused used to reside and Tomuka is a very closed knit society. The prosecution also submitted that his wife is in danger because she was alleged to be having an affair with the deceased and as a result this incident took place.

[5] Mr. Khan submitted that the accused is presumed to be innocent until proven guilty and he further submitted that under Section 3 of the Bail Act there is a presumption in favour of the accused of bail being granted. He also submitted that the accused has complied with the requirements of Sections 17 and 19 of the Bail Act. He also submitted that the accused is a first offender and as such the prosecutions fear that the accused will not answer his bail is unfounded. He further submitted that the safety of the accused is not a sufficient ground to deny bail.

[6] Mr. Khan also submitted that the accused will reside at a place in Sarava, Ba and as such no breach of peace will occur and he has provided the Court with a list of sureties and the persons with whom the accused will reside with.

[7] Although the accused is alleged to have made a confession to the police, Mr. Khan submitted that the confession will be in issue as the accused advise the Court at the very outset that he was assaulted by the police and threatened to be taken to the Military camp and also threatened that chillies would be applied to him.

[8] It is common ground that this case will not be heard until after April 2009. In the case of State –v- Kinisimere Suru Criminal Case No. HACO28 of 2004 a decision of Connors J an appeal was dismissed and it was held at the Magistrates’ Court (in this case I was the presiding Magistrate) have powers to grant bail for murder charges. The prosecution is not submitting that I do not have powers to grant bail. Their only submission is that because of the seriousness of the offence, bail should be refused and accused should be remanded in custody.

CONCLUSION

[9] Although the accused is charge with a very serious offence and there is no evidence to suggest that if granted bail he will not surrender to custody and appear in Court; that accused will endanger the public interest so I grant the accused bail on the following conditions:

1. Accused is to enter into bail in the sum of $5,000.00 in his own recognizance with Kulsum Nisha f/n Mohammed Hussein as surety for likesome;

2. That the accused is to reside with Mohammed Haroon Khan s/o Mohammed Ramjan Khan at Sarava, Ba and he is not to change his place of residence without leave of the Court;

3. That the accused is not to go within a distance of 2km of Tomuka which was his former place of residence;

4. The accused is not to contact his former wife and/or to interfere with her in any way and further the accused is not to interfere with any prosecution witnesses;

5. That the accused is to report to Ba Police Station daily between the hours of 6.00 a.m – 6.00 p.m;

6. That the accused is to surrender his passport into Court;

7. That the Department of Immigration is to be notified that the accused is not to leave Fiji without leave of the Court;

8. That the accused is not to go to Nadi Airport for any reasons.

[Mohammed S Khan]
Resident Magistrate

30th September, 2008