ISHTIAQ vs STATE and another
This matter concerns a petition for post-arrest bail filed by the petitioner, Ishtiaq, who was charged under Sections 302/324/34 of the Pakistan Penal Code 1860 in connection with a murder case. The core legal question was whether the petitioner, who was attributed only with raising a 'Lalkara' (instigation) and was found during the investigation to be absent from the scene of the crime, was entitled to bail despite the abscondence of his co-accused. The Court held that the petitioner was entitled to bail, reasoning that the investigation had cast doubt on his presence at the scene and that the role attributed to him required further probe. Furthermore, the Court established the principle that a petitioner cannot be denied bail merely because a co-accused is an absconder, particularly when there is no evidence that the petitioner facilitated such abscondence. Consequently, the bail petition was accepted subject to the furnishing of bail bonds.
- Can a petitioner be denied bail solely because a co-accused is an absconder?
- Does the attribution of a Lalkara alone, when investigation findings place the accused away from the scene, constitute sufficient grounds to deny bail?
- Is a petitioner entitled to bail when the investigation report contradicts the initial FIR regarding the petitioner's presence at the crime scene?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 87, Code of Criminal Procedure 1898
- Section 88, Code of Criminal Procedure 1898
ORDER
Ishtiaq son of Sardar Muhammad/petitioner has sought post-arrest bail in case FIR No, 350, registered at Police Station Sadar Chichawati, on 09-08-2007, for offences under Sections 302/324/34, PPC.
2. According to prosecution case, while complainant along with his brother Nisar Ahmad deceased was lifting soil from the front side of their house, the petitioner-restrained them from doing so; and thus, a quarrel took place between both the parties. The allegation against the petitioner is that he raised Lalkara, thereupon his brother Abdul Razzaq after picking up a rifle from his house rushed to the spot and fired two successive fires at Nisar Ahmad, one of them landed on the belly of Nisar Ahmad, who succumbed to the injury at the spot. When the complainant tired to rescue his brother, Abdul Razzaq also made a fire towards him but luckily he saved.
3. Learned counsel for the petitioner submits that the quarrel was started between the petitioner and the deceased; that the petitioner was empty handed; that he did not cause any injury to the deceased or any PW; that only Lalkara is attributed to him; that role of causing injury to the deceased is attributed to Abdul Razzaq co-accused; that during investigation the petitioner has been found not present at the spot; that the petitioner is behind the bars since 30-09-2007; end thus, the petitioner is entitled to bail.
4. Conversely, learned DPG assisted by the learned counsel for the complainant submits that the petitioner is nominated in the FIR with specific role of raising Lalkara and on his instigation his real brother Abdul Razzaq fired at the deceased; and that Abdul Razzaq is still absconder and if the petitioner is released on bail, he would also abscond. However, learned DPG concedes that during investigation the petitioner was found not preset at the spot.
5. Arguments heard and record perused.
6. It is an admitted fact that the petitioner is nominated in the FIR and role of Lalkara is attributed to him but during the investigation admittedly he was not found present at the spot; and as such, the role assigned to petitioner needs further probe to connect him with the commission of offence. It is further noted that the petitioner was shown to be empty handed at the scene of occurrence and he did not cause any injury to any one. As far as contention raised by the learned counsel for the complainant regarding the abscondence of Abdul Razzaq.co-accused is concerned, there is no allegation against the petitioner that he facilitated his co-accused to abscond, therefore, the petitioner cannot be deprived of the concession of bail merely on the ground that- his co-accused has not been arrested so far. From the perusal of record it also reveals that no proceedings under Sections 87/88 Cr.P.C. have been initiated against the co-accused so far.
7. In view of the above circumstances, I am inclined to accept this petition and admit the petitioner to bail, subject to furnishing bail bond in the sum of Rupees Five Lacs (Rs,5,00,000/-) with two sureties, each in the like amount, to the satisfaction of the trial Court.