Hafiz MUHAMMAD BASHARAT vs THE STATE
This matter concerns two post-arrest bail petitions filed by Hafiz Muhammad Basharat and Muhammad Siddique, who were accused in an FIR registered under sections 302 and 365 of the Pakistan Penal Code 1860. The core legal question was whether the petitioners were entitled to bail given the specific allegations of abduction and the subsequent murder of the victim by the complainant's son. The court held that the petitioners were entitled to bail, observing that no specific injury was attributed to them and that the allegations regarding the purpose of the abduction were unclear, particularly as the victim appeared to be a consenting party. Furthermore, the court noted that the witnesses did not actually observe the abduction, rendering the prosecution's case a matter of further inquiry. The court established the principle that where the essential elements of an offense, such as the specific intent required for abduction under section 365-B of the Pakistan Penal Code 1860, are not clearly established and the victim's own family member is the primary perpetrator of the homicide, the case against the accused warrants further inquiry, justifying the grant of bail under section 497(2) of the Code of Criminal Procedure 1898.
- Whether the absence of specific intent for abduction under the Pakistan Penal Code 1860 constitutes grounds for further inquiry in a bail application?
- Does the lack of eyewitness testimony regarding an alleged abduction justify the grant of bail?
- Can bail be granted under section 497(2) of the Code of Criminal Procedure 1898 when the primary allegation of injury is attributed to a third party rather than the accused?
- 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
' MUHAMMAD AKRAM QURESHI, J.--- By this single order I propose to dispose of post arrest bail petitions, Criminal Miscellaneous No,3043-B of 2008 titled Hafiz Muhammad Basharat v. The State and Criminal Miscellaneous. No,3426-B of 2008 titled Muhammad Siddique v. The State together arising out of F.I.R. No,581 of 2007 dated 14-11-2007, registered under sections 302/365, P.P.0 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 along with two unknown companions came on Car LPT/5674 and boarded Mst. Tanzeela forcibly in the car and went away. He along with 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 F . I. R.
3. Learned counsel for the petitioners contends that from the facts and circumstances of the case the provisions of Section 302 P.P.0 are not attracted against the petitioner; that the complainant has himself admitted that his son had murdered the deceased; that according to the F.I.R.
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, P.P.C. Are also not attracted against the petitioner; that the case of the petitioner falls within the domain of subsection (2) of section 497, Cr.P.C. Lastly, he prays that the petitioners are entitled to the grant of bail.
4. Conversely, the learned D.P.-G. Assisted by the learned counsel for the complainant has opposed these applications on the ground that the petitioners are named in the F.I.R. 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 P.Ws. 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 F.I.R. Section 365-B, P.P.0 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. Hi 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 lac only) each with one surety each in the like amount to the satisfaction of the learned trial Court.