NISHAN alias NISHO vs THE STATE
This matter concerns a post-arrest bail application filed by the applicant, Nishan alias Nisho, who was charged under Section 302/34 of the Pakistan Penal Code 1860 in connection with a murder case. The core legal question was whether the applicant, who was alleged to have facilitated the commission of the crime by pointing a weapon but not firing the fatal shots, was entitled to the grant of bail pending trial. The court, upon reviewing the arguments regarding the applicant's specific role, the nature of the evidence, and the background of enmity, determined that the applicant's case for bail was stronger than the prosecution's opposition. Consequently, the court confirmed the grant of bail to the applicant. The key principle laid down is that where an accused is alleged to have played a role limited to facilitating an offence rather than causing the fatal injuries, and where the prosecution's case relies heavily on interested witnesses without independent corroboration or recovery of incriminating items, the court may exercise its discretion to grant bail pending trial.
- Is an accused entitled to bail when the specific role attributed to them is limited to facilitating the offence rather than causing the fatal injury?
- Does the presence of a background of enmity between the parties affect the court's consideration of a bail application?
- Can bail be granted to an accused charged under Section 302/34 of the Pakistan Penal Code 1860 when no incriminating recovery is made from their possession?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 107, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
ORDER
1. ' By this order I propose to dispose of Criminal Bail Application No,607 of 2002 filed on behalf of applicant Nishan alias Nisho Pathan in a case bearing Crime No,102/2002 of Police Station, Ghotki for offence under section 302/34, P.P.C. The bail plea of the applicant was declined by the learned Sessions Judge, Ghotki vide order, dated 31-10-2002.
2. ' The facts giving rise to the prosecution case are that on 27-5-2002 at 12-15 a.m. Asghar Ali Pathan appeared at Police Station, Ghotki and lodged F.I.R. Alleging inter alia that some time back Arbab Pathan and Qadir Bux Pathan were murdered such allegation was levelled by Qurban Pathan and Subhan Ali Pathan against Akhtar Ali brother of complainant. They were giving out that they will kill Akhtar Ali in order to take the revenge of their uncle and father for that episode. On 26-5-2002 as the complainant along with his brother Javaid Ahmed and friend Munawar Ali Khoso came at the Bus Stand Ghotki for going to Karachi and as they were waiting for Coach, at 11-30 p.m. They saw (1)
3. Qurban Ali, (2) Nishan alias Nisho Shah, (3) Jahan alias Shahoo duly armed with Kalashnikov and
(4) Subhan Ali alias Babloo were standing there. Nishan and Shah Jehan pointed their Kalashnikovs whereas Qurabn Ali and Subhan Ali took out their pistols from their folds saying that today they will take the revenge of an enmity. At this Qurban Ali and Subhan fired from their respective pistols at Akhtar Ali brother of complainant Asghar All which hit him as a consequence whereof he fell down by raising cries. On fire-arm reports and commotion several persons from the vicinity came running by making fires. Akhtar Ali was seen who has sustained injuries on different parts of his body such as back and chest. He was bleeding and had expired. His body was removed to Civil Hospital, Ghotki for post-mortem. Complainant thereafter lodged F.I.R. Disclosing that 40/41 years prior to this incident Qurban Ali and Subhan Ali were killed by means of pistol shots and the present incident is outcome of the said enmity. The investigation followed and in due course the applicant was sent-up to stand trial in the Court of learned Sessions Judge, Ghotki.
4. ' I have heard the learned counsel for the respective parties and perused the record.
5. ' It has been contended by the learned counsel for the applicant that the case against him is false who has been involved in the background of enmity as suggested in the F.I.R. It has also been contended that no active part of causing injury is attributed to the applicant excepting facilitating the commission of offence. It has also been argued that the witnesses disclosed in the F.I.R. Are interested and hostile to the applicant and no independent persons were disclosed to have spoken against the accused. Nothing incriminating was alleged secured from the possession of the applicant. Learned counsel in that eventuality argued that it is a fit case where the applicant could be enlarged on bail. He has referred to the following case-law in support of his contention:-
(1) Abdul Rehman v. Javed and 2 others 2002 SCM R 1415, (2) Farzand Ali v. Taj and 2 others 2000 SCM R 1854, (3) Faraz Akram v. State 1999 SCM R 1360, (4) Muhammad v. The State 1998 SCM R 454,
(5) Bati Khan v. Gulzar and 5 others 1988 SCM R 279, (6) Mumtaz Hussain and 5 others v. State 1996 SCM R 1125 (7) Shafi Muhammad v. State 1999 PCr.LJ 890, (8) Gul Hassan alias Hassan and another v. State 2001 PCr.LJ 1491, (9) Meer Mastoi v. State 2002 PCr.LJ 1952, (10) Nisar Khan and others v. State 1999 PCr.LJ 1884 and (11) Abdul Razaq v. State 2002 PCr.LJ 414.
6. 'As against the arguments of the learned counsel for the applicant, it has been contended by Mr. Habibullah Shaikh, learned counsel for the complainant that the F.I.R. Has been promptly lodged inasmuch as the incident was alleged to have taken place on 26-5-2001 at 11-30 p.m. Whereas the F.I.R. Was lodged on 27-5-2001 at 12-30 p.m. Which is without any loss of time. According to the learned counsel the actual role attributed to the applicant is to the extent of facilitating the crime/ abatement which is covered by sections 107 and 109, P.P.C. He further argues that the deceased Akhtar Ali has sustained as many as six injuries being entry and exit. Learned counsel for the complainant has placed reliance on the following case-law in support of his contentions:---
(1) Abdul Rehman v. Javaid and two others 2002 SCM R 1415, (2) Munawar v. State 1981 SCM R 1092,
(3) Hakim Ali and 3 others v. State 1979 SCM R 114, (4) Muhammad Yousif and another v. State 2002 PCr.LJ 1645, (5) Zahid Shah v. State 2001 PCr.LJ 134, (6) Haji Punhal v. State 2002 PCr.R. (Larkana) 1701.
7. ' Mr. Sher Muhammad Shar learned A.A.-G. Appearing on behalf of the State adopts the arguments of Mr. Habibullah Shaikh learned counsel for the complainant.
8. I have given my anxious consideration to the arguments of the learned counsel for the respective parties, perused the record and feel that argument raised by the learned counsel for the applicant appears to be more weighty in comparison to the arguments of the learned counsel appearing on behalf of the complainant and Sher Muhammad Shar, A.A.-G. By my short order, dated 19-12-2001 I had granted bail to applicant Nishan alias Nisho and these are the reasons for the same. Criminal Bail Application No,607/ 2002 stands disposed of.