KABEER ABID and others vs THE STATE
This order disposes of two pre-arrest bail applications filed under section 498 of the Code of Criminal Procedure 1898 in a case registered under sections 302, 147, and 149 of the Pakistan Penal Code 1860. The prosecution alleged that the petitioners, driven by political/election rivalry and previous enmity, waylaid the complainant party, with one petitioner raising a lalkara, another inflicting an injury with a hoe, and the third striking a witness with a stick. The main legal questions concerned whether pre-arrest bail should be confirmed where the medical evidence contradicted the specific role assigned to one petitioner, the injury inflicted by another petitioner fell under a bailable category requiring further inquiry into vicarious liability, and the third petitioner was only assigned an unweaponed lalkara amidst a risk of wider false implication due to enmity. The Lahore High Court confirmed the pre-arrest bail, holding that the medical report failed to corroborate the injury attributed to one petitioner, the bailable nature of the injury caused by another necessitated further inquiry into vicarious liability, and the allegation of lalkara coupled with admitted enmity suggested a potential attempt to widen the net of accused persons.
- Whether pre-arrest bail can be confirmed when the injury attributed to an accused is contradicted by the post-mortem report?
- Whether inflicting a bailable injury requires further inquiry into vicarious liability for murder under section 302 of the Pakistan Penal Code 1860?
- Whether an unweaponed accused alleged only to have raised a lalkara is entitled to pre-arrest bail in the presence of admitted enmity between the parties?
- Section 302, Pakistan Penal Code 1860
- Section 147, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
ORDER
' MIAN -MUHAMMAD NAJAM UZ ZAMAN, J.---This order will dispose of Criminal Miscellaneous No.3758-B of 2008 filed by Kabeer Ahmed, Muhammad Tariq and Criminal Miscellaneous No.3759- B of 2008 filed by Muhammad Abbas seeking pre-arrest bail in case F.I.R. No.21 of 2008, dated 18-2- 2008 of the offence under sections 302/147/149, P.P.C. Registered at Police Station Kot Nainan, District Narowal.
2. The said case was got registered by Muhammad Latif son of Muhammad Sharif with regard to the murder of Muhammad Saleem and causing injuries on the persons of Atiq and Liaquat at the hands of the petitioner and their co-accused. In nutshell the case of the prosecution is that on 18- 8-2008 at about 9 a.m., when the complainant party was returning after casting votes accused persons waylaid them and launched attack. Allegedly petitioner Kabeer raised lalkara, as a result of which Muhammad Irshad co-accused gave blow with the hoe on the head of Muhammad Saleem followed by blow by Muhammad Abbas petitioner who was also carrying hoe on the right side of Muhammad Saleem. Allegedly Muhammad Tariq gave injury of Liaqat on the head with Sota and other co-accused caused injuries to Muhammad Attiq as well.
' Motive for the occurrence is stated to be previous enmity between the parties.
3. Pre-arrest bail is sought on the grounds that petitioners have been involved in this case with mala fide intention because of their previous enmity; medical evidence contradicts the ocular account; the injury attributed to Muhammad Tariq on the person of Liaqat P.W. Falls within the category of Shuja-e-Khafifa which is a bailable offence and that this petitioner never caused injury to the deceased. With regard to Kabeer Ahmed petitioner it is submitted that at the relevant time he was not carrying any weapon and precise allegation against him is that of raising lalkara. It is submitted that such kind of allegation is normally attributed against innocent person in order to widen the net to implicate as many people as possible as it is apparent from facts of. The case (all the accused are real brothers). Conversely learned counsel for the complainant as well as the DPG vehemently opposes the bail applications.
4. After hearing learned counsel for the parties and perusing the record, I have observed that according to F.I.R. During the occurrence deceased received two injuries; one on the head at the hands of Irshad (co-accused) and the second one on the right side (part of body has been explained). The injury attributed to Muhammad Irshad (co-accused) stands corroborated from the post mortem report but said report is silent qua the injury attributed to Muhammad Abbas petitioner.
' As far petitioner Muhammad Tariq is concerned, at the relevant time statedly he was armed with Sota and had cause injury to Liaquat P.W., the said injury was declared by the medical officer as Shuja-eKhafifa which is a bailable offence. Admittedly Muhammad Tariq had not caused any injury to the deceased and in the circumstances as to how far he could be held vicariously liable for the offence section 302, P.P.C. Calls for further inquiry.
' With regard to Kabeer petitioner, I have observed that at the relevant time he was not carrying any weapon and the precise allegation against him is that of raising lalkara. Whether the said lalkara would be called a proverbial or commanding in nature is yet to be determined by the trial Court.
' The enmity between the parties is also not denied by counsel for the complainant. I have also observed that all the petitioners are real brothers and I find much force in the argument of learned counsel for the petitioners that because of the previous enmity possibility that prosecution had thrown its net too wide to implicate as many people as possible, cannot be ruled out. In this view of the matter, these petitions are allowed and ad interim pre-arrest bail already granted to the petitioners, vide orders, dated 6-5-2008 stands confirmed against the same surety bonds.