TAJ and another vs MUHAMMAD IRSHAD and others
This criminal miscellaneous application arises out of a bail petition filed by the accused-petitioners seeking post-arrest bail in case F.I.R. No. 63 dated 30-11-2003 registered under sections 302/337-L/34, Pakistan Penal Code at Police Station Bakot, after their bail applications were rejected by the lower courts. The core legal question involves determining whether the petitioners are entitled to post-arrest bail given the varying degrees of attribution of roles in a case involving murder and hurt. The Peshawar High Court held that where no active role is attributed to an accused in the commission of the offence, his case falls within the scope of further inquiry warranting the grant of bail, whereas an accused facing vicarious liability under section 34 of the Pakistan Penal Code in a murder case is not entitled to bail. The court laid down the principle that mere presence and nominal or simple injuries attributed alongside vicarious liability under section 34 disentitle an accused to bail in heinous offences like murder, while lack of an active role can successfully make out a case for further inquiry.
- Is an accused entitled to post-arrest bail when no active role is attributed to him in the commission of the offence?
- Does vicarious liability under section 34 of the Pakistan Penal Code bar the grant of bail in a murder case?
- Whether an accused assigned a simple injury with the blunt side of a weapon is entitled to bail when the injured subsequently succumbs to other fatal injuries inflicted by co-accused?
- Section 302, Pakistan Penal Code 1860
- Section 337-L, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
' The learned two Courts below have refused bail to both the accused-petitioners in case F.I.R.
No.63, dated 30-11-2003 of Police Station Bakot under sections 302/337-L/34, P.P.C. And now through the present application, they seek bail from this Court.
2. According to the F.I.R., on the day of occurrence, complainant Muhammad Irshad accompanied by Mst. Rukhtaj, wife of his cousin, brought his cousin Muhammad Bashir in injured and semi- conscious condition to the P.S. And reported that on the day of occurrence, he alongwith his cousin Bashir and his wife, Mst. Rukhtaj were returning to their home from the house of their uncle. It was about 12-30 p.m when they reached the place known as "Kumharan De Pond" where he saw that accused Shaukat, Taj, Aurangzeb and Baffu were standing on the way. On seeing the complainant party, they started abusing them. Co-accused Shaukat was armed with an axe and gave a blow to Bashir on the head with which he received injury while co-accused Aurangzeb gave Bashir a blow with stone with which he received ;injury on the right eye. ,Similarly, accused-petitioner Baffu gave a blow to Mst. Rukhtaj with the blunt side of the axe with which she received injury on the back., whereafter, the co-accused and the accused-petitioners started giving kicks and fists blows to his sister and uncle on account of which they are feeling pains in their bodies. Initially, the case against the accused petitioners and their co-accused was registered under section 337-L/34, P.P.C. But later on injured Bashir succumbed to the injuries and section of law was changed from section 337-L/34, into Ss. 302/337-L/34, P .P.0 .
3. I have heard Mr. Tehthas Khan Jadoon and, Sardar Hafeez-urRehman Abbasi, the learned counsel for the accused-petitioners, Ghulam Mujtaba Khan Jadoon, Advocate for the complainant and Qazi Abdul Jalil, Advocate for the State, and have also perused the record.
4. In support of the bail application, the learned counsel for the accused-petitioners contended that no active role has been attributed to accused petitioner Taj Muhammad while the injury on the person of Mst.Rukhtaj, which has been attributed to the accused petitioner Beffu is simple in nature. So far as the case against the accused-petitioner Taj is concerned, both the learned counsel for the complainant and the learned counsel for the State admitted that in the commission of the offence, no active role has been attributed to Taj accused-petitioner, as such, his case is arguable for the purpose of bail.
5. As far as the, case against accused petitioner Baffu is concerned, no doubt, he is charged in the F.I.R. For giving a blow to P.W. Mst. Rukhtaj with a stone with which she has received injury on the back which is simple in nature but this is a case of murder and hurt and he cannot escape the vicarious liability under section 34, P.P.C., Accordingly, he is not entitled to the grant of bail.
6. As a result this application is partially accepted. Accused-petitioner Taj is.Ordered to be released on bail on his furnishing a bail bond in the sum of Rs. 1,00,000 with two sureties each in the like amount to the satisfaction of illaqa/Judicial Magistrate, who has to ensure that the sureties are local, reliable and persons of means while the application of accused petitioner Baffu is hereby rejected.