MUHAMMAD RASHID vs THE STATE
This criminal bail application was filed by the applicant/accused against the rejection of his bail application by the 1st Additional Sessions Judge, Karachi, Malir, in a case registered under Sections 302 and 34 of the Pakistan Penal Code 1860. The prosecution alleged that the applicant was present at the crime scene with the co-accused, who fired the fatal shot at the deceased. The applicant contended that he was unarmed, did not participate in the attack, and that no incriminating material was recovered from him. Furthermore, key eyewitnesses did not implicate him in their statements recorded under Sections 161 and 164 of the Code of Criminal Procedure 1898. The High Court observed that common intention must be gathered from actions and that the applicant had no active role or mens rea attributed to him. Holding that the applicant's case fell within the ambit of further inquiry, the Court granted post-arrest bail subject to a solvent surety.
- Can post-arrest bail be granted on the ground of further inquiry where an accused is merely present at the crime scene without any active role or weapon?
- Whether common intention under Section 34 of the Pakistan Penal Code 1860 can be inferred solely from the presence of an accused at the scene of occurrence without any overt act?
- Does the failure of eyewitnesses to implicate an accused in their statements under Sections 161 and 164 of the Code of Criminal Procedure 1898 make the case one of further inquiry?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
- Section 164, Code of Criminal Procedure 1898
ORDER
1. ' DR. QAMMARUDDIN BOHRA, J.---This criminal bail application has been filed against the rejection of the bail application by 1st Additional Sessions Judge, Karachi, Malir, dated 23-4-2008 in Criminal Bail Application in Session case No.102 of 2008 relating to F.I.R. No. 14 of 2008 under section 302/34, P.P.C. Police station Sukhan.
2. ' Brief facts of the case according to the F.I.R. Are that the complainant Haji Dil Muhammad had registered an F.I.R. On 9-2-2008, at 2345 hours at Police Station Sukhan, wherein he had stated that he is residing at Juma Himayati Goth, Bhains Colony, Karachi with his wife and other family members and is running his own business. Hiw nephew Soomar alias Dadha son of Kala Khan aged about 25-26 years is also residing with him. His nephew is serving Karachi Export Processing Zone at Z and M Factory. On 9-2-2008, his nephew, as usual went for his duty at 7-00 p.m. He was present in his office Bhains Colony. His cousin Rustam informed him through telephone that his nephew Soomar had received bullet injury at Export Processing Zone and lying injured condition at Bahins Colony Memon Hospital. On this information, he went to the Memon Hospital, where she saw the dead body of his nephew, who received a bullet injury on his right eye. The dead body of his nephew was taken by him and other relative for post-mortem at Jinnah Hospital Karachi. After the post-mortem, he inquired about the injury of his nephew. He was informed by one Sajid Khan, Muhammad Imtiaz, Mushtaq Ahmed that they were coming in their motorcycle from the company after closing of factory along with Soomar alias Dadha. When they reached at 0705 hours, near Jamila Masjid, Suleman and Rashid were going on foot in front of them, as soon as they crossed them, Suleman called them loudly, on which Soomar stopped the motorcycle and saw towards backside Suleman made fire upon the Soomar with his pistol, which hit near right side of his eye, who sustained injury and fell down. Subsequently, he succumbed to his injury. Suleman and Rashid made their escape good from the scene of offence.
3. ' Thereafter, he registered the case against the above named persons.
4. ' I have heard Mr. Shamsul Hadi learned counsel for the applicant/accused, Mr. Saleem Akhtar learned Additional Prosecutor General Sindh as well as Ms. Afsheen Aman learned counsel for the State.
5. ' The learned counsel for the applicant/accused argued that in the F.I.R. The applicant/accused has been alleged to be present at the place of occurrence and there is no accusation against him and mere presence at the place of incident does not constitute any offence. Nothing incriminating articles have been recovered from the possession of the present accused/applicant. He further contended that the star witnesses, namely Sajid Khan, Muhammad Imtiaz and Mushtaq have neither implicated the present accused in their 161, Cr.P.C. Statements nor in the 164, Cr.P.C.
6. Statements, which clearly shows that the present applicant/ accused is totally innocent.
7. ' The learned Additional Prosecutor General Sindh did not oppose the bail application, whereas learned State Counsel stated that there is common intention as presence of the applicant/accused at the place of wardat is not disputed.
8. According to the F.I.R. The main accused Suleman Khan has been accused for firing on the deceased on his eyes and that only one injury caused his death, whereas, the fire-arm is recovered from the main accused Suleman Khan and star witnesses/eyewitnesses namely Sajid Khan, Muhammad Imtiaz and Mushtaq all implicated the main accused Suleman in their 161, Cr.P.C.
9. Statement and in 164, Cr.P.C. statement.
10. ' Admittedly, the complainant, who lodged the report on the information, is not eye-witnesses of the incident. Admittedly, the above named witnesses have not alleged the present applicant/accused for firing or armed with T.T. Pistol. They only stated that he was present with main accused.
11. According to the counsel for the applicant the Investigating Officer has mentioned in the challan that there is no evidence against the present applicant/accused except that he has been challaned due to his presence treating the common intention. There are number of decision that common intention always borne out from the actions. Moreover, the applicant/accused is not alleged for any offence and there is no men's real against him so far with the prosecution, as A such, the case of applicant/accused is of further inquiry and he is admitted on bail subject to furnishing of solvent surety in the sum of Rs.100,000 (Rupees one lac only) with P.R. Bonds in the like amount to the satisfaction of the trial Court.
12. Announced in open Court.