Hafiz MUHAMMAD BASHARAT vs STATE
This judgment addresses two consolidated post-arrest bail petitions arising from FIR No. 581/07 registered under Sections 302 and 365 of the Pakistan Penal Code. The core legal question concerns whether the petitioners, who were apprehended at the spot during an alleged abduction incident where the victim was ultimately killed by the complainant's son, are entitled to bail pending trial. The Lahore High Court held that since no specific injuries were attributed to the petitioners, the purpose of abduction was not detailed to attract Section 365-B, the victim appeared to be a consenting party, and no witnesses actually saw the petitioners abducting the victim, the case fell within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure. Consequently, the court granted post-arrest bail to both petitioners, laying down the principle that where essential elements of abduction and the specific motive remain unverified and subject to further inquiry, bail should not be withheld.
- Whether the provisions of Section 365-B of the Pakistan Penal Code are applicable when the purpose of abduction is not detailed?
- Can bail be granted when the accused are not attributed any specific injury to the deceased and their case falls under further inquiry?
- Whether the lack of eyewitnesses to an alleged abduction warrants the grant of post-arrest bail?
- Section 302, Pakistan Penal Code 1860
- Section 365, Pakistan Penal Code 1860
- Section 365-B, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
By this single order I propose to dispose of post arrest bail petitions, Crl. Misc. No, 3043-B/2008 titled "Hafiz Muhammad Basharat Vs. The State" and Crl. Misc. No, 3426-B/2008 titled "Muhammad Siddique Vs. The State" together arising out of FIR No, 581/07 dated 14.11.2007, registered under Sections 302/365 PPC at Police Station, Naushehra Virkan, Gujranwala.
2. Briefly, the facts of the case are that Mst. Tanzeela daughter of the complainant left her house on 13.10.2007 and contracted Nikah with Khalid Raza accused. The complainant brought her back and his daughter obtained Talaq from Khalid Raza. Khalid Raza and Mst. Tanzeela remained in contact with each other, due to which the complainant left his daughter in the house of his sister in Mauza Dharoki. On 14.11.2007 Khalid Raza alongwith two unknown companions came on Car. LPT/5674 and boarded Mst. Tanzeela forcibly. in the car and went away. He alongwith Zaighum, Akram and Muhammad Siddique raised hue and cry and followed the accused out of which two persons namely Basharat and Siddique petitioners were apprehended while the son of complainant Zaighum snatched pistol from Basharat and fired at Tanzeela who received shots and succumbed to the injuries at the spot. Hence, this FIR.
3. Learned counsel for the petitioners contends that from the facts and circumstances of the case the provisions of Section 302 PPC are not attracted against the petitioner; that the complainant has himself admitted that his son had murdered the deceased; that according to the' FIR, Basharat Ali petitioner was armed with a pistol and Zaighum son of the complainant snatched pistol from him and resorted to firing at Mst. Tanzeela. Consequent upon, she received injuries, fell down and died at the spot; that the petitioners are not attributed any injury on the person of the deceased; that no overt act is attributed to them in the present occurrence; that from the material available on record the provisions of Section 365 PPC are also not attracted against the petitioner; that the- case of the petitioner falls within the domain of sub-section (2) of Section 497 Cr.P.C. Lastly, he prays that the petitioners are entitled to the grant of bail.
4. Conversely, the learned DPG assisted by the learned counsel for the complainant has opposed these applications on the ground that the petitioners are named in the FIR; that the role of forcibly abducting Mst. Tanzeela is attributed to them; that the petitioners have no reasons to approach the spot of occurrence; that the complainant had no animus to falsely implicate the accused or exaggerate and that the petitioners were apprehended at the spot.
5. I have considered the respective contentions of the parties and also perused the record.
6. Hafiz Muhammad Basharat and Muhammad Siddique petitioners have not been attributed any injury to Mst. Tanzeela Bibi deceased or to any of the PWs. The only allegations against them are the forcibly abduction of Mst. Tanzeela Bibi deceased in a car. The purpose of abduction has not been detailed in the FIR. Section 365-B PPC is applicable only when the abduction is done for the purposes of sexual lust etc. In the present case the complainant and the witnesses have not explained the purpose for which Mst. Tanzeela deceased was being abducted. Furthermore, Mst.
Tanzeela Bibi appears to be a consenting party to the alleged abduction because annoyed of her attitude her own brother fired at her and committed her Qatl-i-Amd during the present occurrence. In these circumstances, the allegations of abduction of Mst. Tanzeela deceased are matter of further enquiry. There is another important aspect that the witnesses never saw the petitioners abducting Mst. Tanzeela Bibi deceased. She was the only witness about the said episode but after her Qatl-i-Amd that chapter was closed and there was no witness qua her abduction.
7. Resultantly, both the present petitions are allowed. The petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs, 2,00,000/- (Rupees Two Lacs only) each with one surety each in the like amount to the satisfaction of the learned trial Court.