MUHAMMAD SHARIF vs THE STATE and another
This matter comes before the Lahore High Court through a criminal petition seeking post-arrest bail in a case registered under sections 302 and 34 of the Pakistan Penal Code 1860 at Police Station Dera Rahim, District Sahiwal. The core legal question concerns whether the petitioner, who was attributed the roles of raising a Lalkara, making aerial firing, and alleged conspiracy in a murder case stemming from a blood feud, is entitled to bail when co-accused were placed in column No. 2 by police investigation and no recovery was effected from him. The court held that given the absence of recovery, the nature of the role attributed during an enmity-based occurrence, and the findings regarding conspiracy requiring further inquiry, the petitioner has made out a case for bail. The key principle laid down is that where active participation and conspiracy require further evaluation after recording evidence and no recovery is attributed, the case falls within the scope of further inquiry under section 497 of the Code of Criminal Procedure 1898, warranting the grant of bail on tentative assessment.
- Whether a petitioner attributed with a Lalkara and aerial firing in a murder case is entitled to post-arrest bail when no recovery is effected from him?
- Does an Investigating Officer's opinion regarding criminal conspiracy warrant the denial of bail when unsupported by immediate material evidence?
- Whether a case of blood feud involving conflicting police findings as to presence and conspiracy falls within the scope of further inquiry under section 497 of the Code of Criminal Procedure 1898?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 173, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
' SAIF-UR-REHMAN, J.---Through this petition the petitioner seeks bail in case F.I.R. No,278, dated 1-8- 2007 under sections 302, 34, P.P.C. Police Station Dera Rahim District Sahiwal.
2. Allegedly the petitioner while armed with pistol along with his co-accused who were also armed with their pistol came to the place of occurrence and committed Qatl-i-Amd of Muhammad Hafeez Shah in furtherance of their common intention. Role attributed to the petitioner is that at the spot he had been raising Lalkaras and making aerial firing. The occurrence took place due to blood feud existing between the parties.
3. Learned counsel for the petitioner submitted that case against the petitioner was false. Even according to the police investigation he was not present at the place of occurrence. Muhammad Anas and Waqar co-accused of the petitioner after being declared as innocent had been placed in Column No,2 of report under section 173, Cr.P.C. No recovery was effected from the petitioner. He had been in the jail since 15-9-2007. He was no more required by the police. According to police investigation, however, he was found liable for conspiracy. This was also a bald opinion of the Investigating Officer not supported by any material because no evidence could be collected to prove conspiracy. Learned counsel has placed reliance on 2008 M LD 339, 2008 YLR 715, 2008 YLR 844 and 2007 PCr.LJ 1274.
4. Opposing the petition learned D.P.G. Assisted by learned counsel for the complainant submitted that in promptly lodged F.I.R. The petitioner was nominated with the specific role. Lalkara attributed to him was not proverbial but commanding as a result of which the other accused had done deceased to death on account of the motive alleged in the F.I. R He had also hatched conspiracy of the offence and thus was the main character who engineered commission of offence, punishment for which fell under prohibitory clause of section 497, Cr.P.C. He had been found guilty by the police.
The petitioner had also been absconding for about one month. Ipsi dixit of the police was not binding on this Court. Reliance was placed on 1985 SCM R 195, 2002 SCM R 442 and PLD 2004 SC 822.
5. In the background of enmity involving murder, if the petitioner was present at the place of occurrence, he would not have confined himself only to the aerial firing. The opinion of the Investigating Officer, therefore, cannot be termed as an opinion without substance. No recovery was effected from him. It shall be seen at the time of final judgment as to whether he was active participant of the alleged conspiracy after recording of evidence. This is found to be a case of further inquiry to the extent of petitioner. In the light of which the case-law relied upon by the complainant provides no help to him.
6. In view of the above, petitioner is allowed bail in the sum of Rs,100,000 (one lac) with two sureties of like amount to the satisfaction of learned trial Court. The above observation being of tentative nature shall not prejudice the mind of the learned trial Court at the time of trial.