NAZAKAT ALI vs THE STATE and another
This criminal revision petition is directed against the order of the District Criminal Court, Kotli, whereby the post-arrest bail of the accused petitioner was refused. The core legal question involved is whether the petitioner, to whom only a role of raising a Lalkara and being armed with a stick is attributed in a murder case under sections 302/34 and 506 of the Azad Penal Code, makes out a case for further inquiry under section 497(2) of the Criminal Procedure Code. The Shariat Court of Azad Jammu and Kashmir held that since the fatal injury was attributed to the principal accused and the role of the petitioner requires further inquiry as to the sharing of a common intention after recording evidence, the petitioner is entitled to bail. The court laid down the principle that merely going to the scene of occurrence with a stick and raising a Lalkara, without the weapon being used, brings the case within the ambit of further inquiry under section 497(2), making the accused eligible for the concession of post-arrest bail.
- Does a role of raising a Lalkara and carrying a stick in a murder case fall within the scope of further inquiry under section 497(2) of the Criminal Procedure Code?
- Can common intention under section 34 of the Azad Penal Code be inferred merely from an accused going to the scene of occurrence with a stick without using it?
- Whether an accused attributed with a lesser role distinct from the principal offender is entitled to post-arrest bail?
- Section 302, Azad Penal Code
- Section 34, Azad Penal Code
- Section 506, Azad Penal Code
- Section 497, Criminal Procedure Code
ORDER
' SARDAR M. ASHRAF KHAN, J.--- The above titled revision petition has been directed against the order of District Criminal Court, Kotli dated 13-9-2007 whereby, the bail after arrest was disallowed by the said Court.
2. The brief facts forming the background of the instant revision petition are that a case under sections 302/34, and 506, A.P.C. Was registered against accused petitioner and co-accused at Police Station Nar on 28-10-2006. After registration of the case, the accused petitioner was apprehended by the police. After having been arrested, he moved an application for bail before District Criminal Court, Kotli which was disallowed by the said Court vide its order, dated 13-9-2007.
Hence this revision petition.
3. Kh. Abdul Basit, the learned counsel for the petitioner argued that the trial Court committed grave illegality while recording the impugned order. The learned counsel further submitted that the accused petitioner has been involved in a false case on account of enmity and only the allegation of raising Lalkara is attributed, which is yet to be proved. The learned counsel further contended that the accused petitioner is behind the bars for the last 16/17 months and his case falls within the ambit of further enquiry, therefore, he may be released on bail. In support of his contentions the learned counsel cited the following case-law: --
(1) 2000 PCr.LJ 1052; (2) 2004 PCr.LJ 609.
4. Raja Javed Akhtar, the learned counsel for the respondent while controverting the arguments raised by the learned counsel for the petitioner submitted that the accused petitioner is involved in a heinous offence therefore, the trial Court has rightly declined to allow the concession of bail. The learned counsel further contended that the petitioner instigated the main accused to kill the deceased and there is sufficient proof on record to connect the accused petitioner with the alleged offence, therefore, he is not at all entitled to the concession of bail. The learned counsel defended the impugned order on all counts.
5. The learned A.A.-G. Supported the arguments' raised by the learned counsel for the complainant.
6. I have heard the learned counsel for the parties and perused the relevant record with utmost care.
7. A thorough perusal of F.I.R. Shows that the deceased Rizwan was allegedly killed by Raj Muhammad accused by using .12 bore gun, as such fatal injury is attributed to main accused, while the case of the accused petitioner is quite different from that of principal accused, he is alleged to have armed with stick and raising Lalkara. The stick has not been used in the occurrence as such the matter of sharing common intention can only be ascertained after recording the evidence.
Merely going at the scene of occurrence with stick does not give an apprehension to take an inference of common intention as visualized by section 34, A.P.C. The matter as to whether the accused acted as such, or on behest of the petitioner can only be ascertained after recording the evidence by the trial Court. In this view of the matter, because the role attributed to the accused petitioner is that of Lalkara, which in my opinion is matter of further enquiry within the meaning of subsection (2) of section 497, Cr.P.C: Therefore, I accept this revision petition by setting aside the impugned order and it is ordered that the accused petitioner shall be released forthwith on furnishing bail bond in sum of Rs,2,00,000 (two lac) consisting two solvent sureties and personal bond in the like amount to the satisfaction of any member of Tehsil Criminal Court, Kotli, if not required or involved in any other case or offence.
Cited by 1 case
- MUNAWAR SHAH vs The STATE 2014 YLR 523