TAHIR RAFIQUE vs THE STATE
This matter concerns a petition for post-arrest bail filed by the accused, Tahir Rafique, in a case involving murder and robbery. The petitioner was implicated in the F.I.R. through a supplementary statement, alleging conspiracy under Section 109, Pakistan Penal Code 1860, following the murder of the complainant's brother during a house robbery. The core legal question was whether the petitioner was entitled to bail despite being implicated via a supplementary statement and allegations of conspiracy, given the evidence of telephonic contact and recovery of incriminating items. The Lahore High Court held that the petitioner was not entitled to bail. The Court observed that the prosecution had produced prima facie weighty material, including call records demonstrating a conspiracy between the petitioner and the deceased's widow, and the recovery of a weapon of offence linked to the petitioner. The Court established the principle that where prima facie evidence exists connecting an accused to the orchestration of a crime, even if the accused was not physically present at the scene, the concession of bail is not warranted.
- Is an accused entitled to post-arrest bail when implicated in a murder case through a supplementary statement alleging conspiracy?
- Does the existence of prima facie evidence of conspiracy and telephonic contact between co-accused justify the refusal of bail?
- Can bail be denied to an accused who was not physically present at the scene of the crime but is alleged to have orchestrated it?
- Section 302, Pakistan Penal Code 1860
- Section 460, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
' M. BILAL KHAN, J,--- Tahir Rafique son of Muhammad Rafique, the petitioner, seeks post-arrest bail in case F.I.R. No,459 of 2006 dated 20-9-2006, registered with Police Station Saddar Pattoki; District.
Kasur for offences under sections 302, 460, 109/34, P.P.C. At the instance of Muhammad Yousaf son of Muhammad Ishaq, the complainant.
2. Precisely the case of the prosecution as it unfolded in the F.I.R., was that on the day of occurrence the complainant along with his brother Muhammad Younas was sleeping on the rooftop and his brother's Wife Mst. Nusrat Bibi along with her children was sleeping in the courtyard; on hearing a knock at the door, when his brother unbolted the door of the main gate, five persons who had muffled their faces entered the house, physical description of three of them has been given in the F.I.R.; one of them caught hold of Muhammad Younas, his brother and the other remained standing to cause scare; the rest of the three accused persons entered the residential room and removed Rs,50,000 from a briefcase and also robbed gold ornaments and the wearing apparel; while leaving the spot one of the accused who was supporting a beard was taken into clasp by Muhammad Younas; the said accused called his companions for his rescue whereupon one of his companions who had not veiled his face, fired with his .30 bore pistol, which hit his brother on his right eye and went through and through the neck; the injured was being taken to hospital but on reaching there he succumbed to his injury. Resultantly the instant F.I.R. Had been recorded.
3. The petitioner was arrested on 21-9-2006 and is in custody ever since. His plea for post-arrest bail did not find favour with the learned Additional Sessions Judge, Pattoki, who dismissed his application vide order, dated 3-2-2007. Hence this application.
4. It has been argued by the learned counsel for the petitioner that three years prior to the instant occurrence the petitioner had pronounced Talaq on the younger sister of Mst. Nusrat Bibi, the widow of Muhammad Younas and on that account he has been falsely implicated in this case; that the petitioner has been involved in this case on the basis of a supplementary statement in an offence under section 109, P.P.C.; that the case against the petitioner is totally false, baseless and concocted; and that the petitioner is neither named in the F.I.R. Nor any role has been ascribed to him, therefore, he is entitled to the concession of bail.
5. On the other hand the learned Law Officer and the learned counsel for the complainant argued that it was a promptly lodged F.I.R.; that on the basis of supplementary statement got recorded by the complainant on the same day, the petitioner and Mst. Nusrat Bibi had been involved in this case; that during investigation Mst. Nusrat Bibi made a disclosure about weapon of offence i.e. a carbine and had confessed that the same had been sent to her by Tahir Rafique the present petitioner; that recovery of two cellular phones from the possession of the petitioner by means of which the petitioner had allegedly remained in contact with Mst. Nusrat Bibi and had hatched up a conspiracy for the murder of Younas deceased and pointation .Of carbine by Mst. Nusrat Bibi, are prima facie sufficient to lend strength to the case of prosecution; in this regard the learned counsel for the complainant has provided particulars of calls consisting of six. Pages showing duration of calls from 1-9-2006 till 20-9-2006; and that there is ample incriminating material available on record to connect the petitioner with the commission of offence.
6. After hearing the learned counsel for the parties and perusing the recor ' I find that prima facie there is ample incriminating material availatire against the petitioner. It is not one of those run of the mill Lases where section 109, P.P.C. Is invoked for the purpose of enlarging the net of the prosecution. In the instant case there is prima facie weighty material available against the petitioner which points to his involvement in the case. The possibility that the petitioner had orchestrated the whole incident while designedly remaining away from the actual scene of occurrence, cannot outrightly be ruled out. It would not be prudent to dilate any further on the niceties of the case lest it prejudices any one of the parties. Suffice it to say that the petitioner's case at present does not warrant concession of bail. Resultantly this petition being meritless is hereby dismissed.