NIGAH HUSSAIN SHAH vs THE STATE
This is a criminal petition for post-arrest bail arising from F.I.R. No. 115 registered under sections 302/109/148/149 of the Pakistan Penal Code 1860 at Police Station Bhalwal, District Sargodha, concerning charges of abetment to murder. The core legal question was whether the petitioner is entitled to post-arrest bail on the ground of the acquittal of a similarly placed co-accused, notwithstanding the petitioner's prior abscondence and the dismissal of a previous bail petition. The Lahore High Court held that the acquittal of a co-accused facing a similar role of abetment constitutes a fresh ground and a change in circumstances, and that mere abscondence alone is insufficient to deny bail where incriminating evidence has already been disbelieved or scanned by the trial court resulting in acquittal. The court laid down the principle that the acquittal of a co-accused similarly placed warrants the grant of bail despite prior abscondence, as keeping an accused incarcerated indefinitely serves no penal purpose when the trial is not in sight.
- Does the acquittal of a similarly placed co-accused constitute a change of circumstances sufficient to warrant post-arrest bail?
- Can mere abscondence alone serve as a bar to granting bail when the co-accused has already been acquitted on merits?
- Whether an accused assigned the role of abetment is entitled to bail when incriminating evidence has been evaluated and rejected by the trial court in the case of a co-accused?
- Section 302, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
ORDER
' ABDUL SATTAR GORAYA, J.--- Petitioner is involved in case F.I.R. No,115 dated 1-3-2007 under sections 302/109/148/149, P.P.C. Registered at Police Station Bhalwal District Sargodha.
2. Allegation against the petitioner is that he along with other co-accused abetted the murder of Ali Ibrar deceased.
3. Learned counsel for the petitioner states that the only role assigned to the petitioner is of abetment and that being a weak case on its face value, the petitioner may be allowed bail.
4. The learned D.D.P-G assisted by learned counsel for the complainant came out with the plea that there were two co-accused namely Fidda Hussain and Nigah Hussain Shah who were assigned the similar role but the bail application was dismissed by this Court vide order dated 3-3- 2008 passed in Criminal Miscellaneous No,8338/B of 2007. It is stated that the case of the petitioner is at par with the co-accused, therefore, he is not entitled to the concession of bail. Further argued that the petitioner had absconded and remained fugitive of law, therefore, no concession can be extended in his favour.
5. I have heard the learned counsel for the parties. File also perused.
6. No doubt, the petitioner absconded but the learned trial Judge in respect of the co-accused of the petitioner segregated the trial. Co-accused of the petitioner namely Fidda Hussain was acquitted of the charge on 2-5-2008. The operative part of the judgment appearing at page 9 of the judgment of acquittal reads:--- "(vi) The prosecution has failed to prove the abetment of Fida Hussain and Nigah Shah which was heard by Tahir P.W.
(vii) P.W.9 Pervaiz Iqbal also deposed that occurrence took place on the abetment of Fida Hussain and Nigah Hussain accused and facts of abetment were narrated to him by Tahir Riaz and Amjad Riaz P. Ws. They had told him that they had seen and heard the abetment in the office of Saddat Goods on the same day at 5-00 p.m.. Whereas the prosecution has not proved the factum of abetment. So the statement of Pervaiz Iqbal about the hearing of abetment by Tahir and Amjad Riaz is immaterial. He was only involved due to father of two co-accused namely Safeer Shah and Ghayour Shah and brother of Nigah Shah."
7. In the order dated 3-3-2008, the bail was refused to Fida Hussain, co-accused of the petitioner, for the conspicuous reason that at that time the charge against the petitioner had been framed which fact was confirmed through a report submitted:by the learned trial Judge. The said petition was dismissed with a direction to the learned trial Court which had since been commenced to conclude the same at an early date. No finding with regard to involvement of Fida Hussain, co- accused of the petitioner, was given on merit. Another aspect of the case that ,the accused did not surrender and became fugitive of law; mere abscondence would not prove the petitioner to be guilty of the offence. Abscondence alone will not be sufficient to base the conviction and each case depends upon its own merit and circumstances. In view of the fact that the incriminating evidence which is being used against the petitioner has already been scanned by the learned trial Judge and co-accused of the petitioner namely Fida Hussain similarly placed has been acquitted of the charge, surely there is a change in the circumstances. Mere abscondence of the petitioner would not be a hurdle in granting him bail. I am fortified in my view by Barkat Ali v. Muhammad Asif and others 2007 SCM R 1812 and Shafqat Abbas and another v. The State 2007 SCM R 162. New situation has been cropped up and keeping the petitioner in jail for indefinite period, especially on the face of this situation that his co-accused has been acquitted, would not serve any purpose.
The trial is not in sight so far.
8. In the given situation, this application is accepted and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs,2,00,000 with two sureties each in the like amount to the satisfaction of the learned trial Court.
Cited by 3 cases
- MUHAMMAD ISHAQUE vs The STATE 2013 P Cr. L J 1284
- RASHID BHUTTI vs THE STATE 2012 YLR 802
- ISHFAQ HUSSAIN vs The STATE and another 2013 YLR 730