MUHAMMAD SADIQ vs ABDULLAH JAN and others
This criminal petition was filed by the complainant seeking the cancellation of pre-trial or post-arrest bail granted to respondents No. 1 and 2 by the Sessions Judge, Mansehra, in a case arising from F.I.R. No. 23 dated 5-4-2003 under Sections 302/148/149 of the Pakistan Penal Code and Sections 11/19 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The core legal question was whether the respondents, to whom only a lalkara (incitement shout) was attributed without any active or overt act in the commission of the murder, were entitled to bail. The Peshawar High Court held that since the respondents played no active part and their case was covered by the principle enunciated by the Supreme Court in 'Tariq Zia v. State', the bail-granting order was neither arbitrary, fanciful, perverse, nor obtained through fraud or misrepresentation. Consequently, the High Court dismissed the bail cancellation application, affirming that the legal effect of a lalkara is best examined by the trial court during evidence.
- Whether bail can be cancelled when the order granting it is neither arbitrary, fanciful, perverse, nor obtained by fraud or misrepresentation?
- Does the attribution of a lalkara without an active or overt act in the commission of the offence justify the refusal of bail?
- Is an accused person entitled to bail when their case is covered by precedent from the Supreme Court of Pakistan regarding similar roles?
- Section 302, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 11, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 19, Offence of Zina (Enforcement of Hudood) Ordinance 1979
' Having been involved in case F.I.R. No. 23, dated 5-4-2003, under sections 302/148/149 P.P.C. And sections 11/19 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, Police Station Darband, accused respondents No.1 and 2 moved application for their release on bail in the Court of Learned Judicial Magistrate, Oghi, which was dismissed vide order dated 8-5-2003, Thereafter they moved the Court of learned Sessons Judge, Mensehra, their application was allowed and they were directed to be released on bail vide order dated 7-6-2003, Being not contented with the bail granting order the petitioner has moved the application in hand for cancellation of bail granted to them.
2. Brief facts of the case are that Mst. Saleema and Mehr Afzoon had gone to their Dhaka Rakh alongwith the petitioner for cutting the grass early in the morning on the day of occurrence. They were also accompanied by their relative, namely, Abdul Latif, When all the four persons reached the Dhaka Rakh known as "Rattan" located in village Nazral, they started cutting grass and it was at 9.15 a.m. That Qasim and his son Dildar residents of Chappar duly armed with kalashnicovs alongwith Abdul Jan, Banaras and Khanizaman arrived there. Qasim directed Mst. Saleema to accompany him but she bluntly refused. It was at this juncture that Abdul Jan, Banaras and Khanizaman directed Qasim and his son Dildar that they should kill her if she was not ready to accompany them. Both Qasim and his son Dildar started firing at Mst. Saleema with respective kalashnicovs, as a result of which, she was seriously injured and expired at the sport. The occurrence was witnessed by Mst. Mehr Afzoon and Abdul Latf apart from the petitioner. The motive for the offence was that prior to the occurrence the real brother of the petitioner namely Sardar Khan divorced the daughter of Qasim and sister of Dildar accused and since then accused Qasim and his co-accused were after Mst. Saleema to kidnap her in retaliation.
3. I have heard Mr. Fazal-e-Haq Abbasi Advocate for thepetitioner/complainant, Mr. Shah Muhammad Khan Advocate for the accused/respondents and Mr. Muhammad Ayub Khan learned Deputy Advocate General for the State. I have also perused the record carefully.
4. The role attributed to accused/respondents is that they raised lalkara on which their co-accused attacked the complainant side. They have not played any active/overt act in the commission of the offence. It would be for the trial Court to examine the evidence and determine the effect of lalkara raised by the respondents. In a similar case "Tariq Zia v. State" (2003 SCM R 958) the august Supreme Court of Pakistan granted bail to the accused, therefore, the learned Additional Sessions Judge-II, Mansehra, had rightly appreciated the legal position while enlarging the accused respondents on bail. The bail granting order is neither arbitrary nor fanciful nor perverse nor the same has been obtained by playing fraud or by misrepresentation.
5. I, therefore, dismiss the application.