ZAHEER-UD-DIN BABAR vs STATE
The petitioner sought post-arrest bail in a case registered under Sections 302, 324, and 34 of the Pakistan Penal Code 1860 for Qatl-e-Amd and attempted murder. The prosecution alleged that the petitioner, armed with a pistol, accompanied co-accused in furtherance of a common intention. The petitioner contended that he was found unarmed during the investigation, no weapon was recovered from him, no specific overt act was attributed to him, a cross-version of the incident existed, and his case warranted further inquiry under Section 497(2) of the Code of Criminal Procedure 1898. The State opposed the bail, arguing that the petitioner was named in the FIR, present at the scene, and vicariously liable. The court held that since no overt act or recovery was attributed to the petitioner, the motive was not directly relatable to him, and a cross-version existed, his tentative assessment warranted further inquiry into his guilt. Consequently, the court accepted the petition and admitted the petitioner to post-arrest bail, establishing that absence of overt acts, weapon recovery, and the presence of a cross-version can bring a case within the scope of further inquiry for bail purposes.
- Whether post-arrest bail can be granted when no specific overt act or weapon recovery is attributed to the accused?
- Does the existence of a cross-version of the incident make the case one of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Can an accused allegedly present without a weapon and with no direct motive be admitted to bail pending trial?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
At the outset, learned counsel for the petitioner has sought permission to correct the date of registration of case in the bail petition as 21.7.2003 instead of 8.12.2003. According to him, it was inadvertently mentioned so. The mistake seems clerical: Hence, his request has been allowed. He has made the necessary correction with his signature today before the Court.
2. Petitioner Zaheer-ud-Din Babar through the instant petition has sought for post-arrest bail in Case FIR No, 349 dated 21.7:2003 u/Ss. 302/324/34 PPC registered with Police Station Dijkot, District Faisalabad.
3. Briefly the prosecution case as per FIR is that on 21.7.2003 at about 6.30 p.m. Liaqat armed with .12 bore gun, Zaheer-ud-Din Babar (petitioner) with .30 bore pistol and Salah-ud-Din with Datar, in furtherance of their common intention have committed the Qatl-e-Amd of the deceased Mst.
Shamaila and injured Sajjad, Akbar and Aamar.
4. The motive behind the occurrence is that the brother of injured Sajjad was Malang, who had died. Sajjad used to lit Chiragh on his grave. Liaqat had said to him that he Tits- Chiragh on the grave of a Satan. On grudge over the same, the accused have committed the said act.
5. It has been contended on his behalf that he has falsely been roped in; that during the investigation, it was found that though he was present at the spot but not armed; that no weapon was recovered from him in the investigation; that there is cross-version of the alleged incident from their side and so the case against him is covered under sub-section (2) of Section 497 Cr.P.C.; that he is behind the bars and previous non-convict; and that challan has not been submitted in the Court so far. In support of bail plea reliance has been placed upon the cases of Muhammad Riaz and another Vs. The State (1987 P.Cr.L.J. 288 Lahore) and Moeenuddin vs. State- and another (PLJ 1999 Cr.C. (Peshawar) 230 (DB).
6. Conversely, the learned counsel for the state assisted by the learned counsel for the complainant has opposed the petition on the ground that he is named in the FIR; that he was present at the scene of occurrence with .30 bore pistol; that he has facilitated his co-accused in the commission of the Qatl-e-Amd of the deceased and attempt on the lives of the three injured persons by his presence there; that he is vicarciously liable for the alleged offence; that the police with mala fide intention did not recover the pistol from him; and that he on the basis of the material available on the record is connected with the crime.
7. I have carefully considered the submissions made by both the sides with the help of available record.
8. The fact remains that no overt act at all qua the commission of crime alleged is ascribed to him.
The motive is not directly relatable to him. No recovery was effected from him.
9. Besides than this, during the investigation, it was found that though he was present at the spot but not armed. The fatal shot to the deceased is ascribed to his co-accused Liaqat. Admittedly, there is cross-version of the alleged incident. T.he question of his sharing common intention with his co-accused in the Qatl-e-Amd of the deceased and attempt on the lives of the injured persons is to be considered at the time of trial. His case, therefore, from that angle is open to further inquiry into his guilt. The same, therefore, is covered under sub-section (2) of Section 497 Cr.P.C.
10. He is behind the bars and stated to be previous non-convict. The challan statedly so far has not been submitted in the Court. The same has not been controverted by the other side.
11. In these circumstances, the case for his enlargement on bail has been made out. In this respect reliance is placed upon the above cited case law. The petition, therefore, is accepted and he is admitted to bail subject to his furnishing bail bonds in the sum of Rs, 50,000/- (Rupees fifty thousand) with one surety in the like amount to the satisfaction of the learned Sessions Judge, Faisalabad/trial Court.