FAYYAZ vs THE STATE
The petitioner, Fayyaz, sought post-arrest bail in case F.I.R. No. 16 dated 7-2-2004 registered under Section 324/34, 148, and 149 of the Pakistan Penal Code 1860 at Police Station Jandanwala, District Bhakkar. The core legal question was whether the petitioner was entitled to post-arrest bail given that his name was not in the F.I.R., his role was limited to aerial firing, and his culpability under Section 34 required further probe. The Lahore High Court held that the petition should be allowed and granted post-arrest bail to the petitioner. The court laid down the principle that where an accused's name surfaces seventeen days after the F.I.R. via a supplementary statement, the only allegation is aerial firing causing no material damage, and culpability under Section 34 requires further inquiry under subsection (2) of Section 497 of the Code of Criminal Procedure 1898, the accused is entitled to bail, notwithstanding that he had previously been a proclaimed offender, provided he has been in custody for a considerable period and is not a previous record holder.
- Whether an accused whose name surfaces seventeen days after the F.I.R. through a supplementary statement is entitled to post-arrest bail?
- Does the mere fact that an accused remained a proclaimed offender automatically disentitle him to bail when other circumstances favor it?
- Can engaging solely in aerial firing without causing material damage during a crime attract further probe under Section 34 of the Pakistan Penal Code 1860 within the meaning of Section 497(2) of the Code of Criminal Procedure 1898?
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' M. BILAL KHAN, J.---Fayyaz son of Sultan, the petitioner, by filing the instant petition seeks post- arrest bail in case F.I.R. No,16, dated 7-2-2004, registered at Police Station Jandanwala, District Bhakkar for an offence under section 324/34 P.P.C. Sections 148, 149 P.P.C. Were added later on.
2. The case of the prosecution as it unfolded in the F.I.R. Registered at the instance of Attaullah son of Amanullah, was that Shaukat and Muhammad Riaz armed with pistols, had launched a murderous assault against the complainant party, as a result of which Samiullah, a brother of the complainant, suffered serious fire-arm injuries on his abdomen. Muhammad Riaz co-accused was also attributed a fire shot at the brother of the complainant, which, however, missed. Two unknown persons allegedly armed with .12-bore guns also indulged in aerial firing.
' The motive according to the complainant was that about a year ago there was a fight between the complainant and the accused party. However, later on the respectables of the area had got effected a compromise, but Muhammad Riaz and others kept on nourishing the grudge and as a result thereof they had assaulted the complainant party.
3. The petitioner was arrested on 12-1-2005 and is in custody ever since. His application for post- arrest bail had been turned down initially by the learned Magistrate Section 30, Bhakkar on 18-1- 2005 and thereafter by the learned Additional Sessions Judge, Bhakkar on 3-2-2005. Hence, the instant petition.
4. I have heard the learned counsel for both the sides and have, also gone through the record brought by Muhammad Ashraf, A . S . I.
5. It has straightaway been observed that the petitioner's name did not figure in the F.I.R. His name surfaced for the first time on 24-2-2004, when supplementary statement of the complainant had been recorded, i.e, seventeen days after registration of the case. The petitioner had been declared a proclaimed offender, but he is now in custody for the last almost eleven months. It has also been observed that the only allegation against the petitioner was A that he indulged in aerial firing and had not done any material damage during the transaction, although he was allegedly carrying a fire-arm. His culpability under section 34 P.P.C. Needs further probe within the meanings of subsection (2) of section 497, Cr.P.C. The mere fact that he had remained a proclaimed offender would not disentitle him to concession of bail, if otherwise the facts and circumstances are such which entitle him to the said concession. Even otherwise, as stated earlier, he is in custody for the last almost one year. He is not a previous record holder and the trial has yet not commenced.
6. Resultantly, this petition is allowed and the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs,50,000 (Rupees fifty thousand) with one surety in the like amount to the satisfaction of the learned trial Court.