SHAUKAT ALI vs THE STATE and another
This criminal petition arises out of F.I.R. No. 206 registered at Police Station Azakhel Nowshera, wherein the accused-petitioner Shaukat Ali sought post-arrest bail for offences under sections 302, 324, and 34 of the Pakistan Penal Code 1860. The core legal question was whether the petitioner, who was charged with ineffective firing and whose case was distinguishable from the principal accused, was entitled to bail notwithstanding the allegation of abscondence. The Peshawar High Court held that the petitioner's case fell within the scope of further inquiry under section 497(2) of the Code of Criminal Procedure 1898, as no empty or spent bullet was recovered from his place and medical evidence supported the case against the co-accused. The Court laid down the principle that once a case is determined to be one of further inquiry, abscondence alone does not operate as an absolute bar to the grant of bail. Consequently, the bail petition was allowed.
- Whether an accused charged only with ineffective firing is entitled to post-arrest bail when his case requires further inquiry?
- Does the mere abscondence of an accused operate as an absolute bar to the grant of bail when the case otherwise falls within the scope of further inquiry?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
' DOST MUHAMMAD KHAN, J.-Accused-petitioner, Shaukat Ali, has been booked for crimes under sections 302/324/ 34, P.P.C. In case F.I.R. No, 206 dated 16-7-2003 by Police Station Azakhel Nowshera, hence, he seeks bail in the case.
2. Arguments heard and record perused.
3. Zahir Zaman, complainant, reported the crime on 16-7-2003 at 08-15 hours that he along with deceased Muhammad Tariq was busy in work in the land when the petitioner along with co- accused, Abdul Qayyum, emerged duly armed and fired at them but with the fire shot of co- accused, Abdul Qayyum, the deceased was hit and died.
' Motive for the crime was a dispute over property.
4. As was also contended at the bar, the present accused-petitioner is charged only for ineffective firing, thus, it is to be ascertained from the available materials as to whether there is any circumstantial or corroboratory evidence, showing, his participation in the crime in any manner whatsoever. In this regard, neither any empty nor any spent bullet was recovered from the place of the present petitioner or from the place of the deceased and complainant to show that a second person made firing along with the principal accused.
5. The injury on the person of deceased shown in the pictorial would suggest that it was caused from a very close distance and when empty of .12 bore has been recovered from the place of co- accused, Abdul Qayyum, and medical evidence also support the prosecution's case against the principal accused while the petitioner's case is entirely distinguishable and is clearly the one which would require further enquiry.
6. The plea of the prosecution/ complainant that the petitioner absconded, therefore, he be refused bail, is not tenable because once the case is found one of further enquiry then abscondence alone shall not operate as an absolute bar in way of grant of bail, as was held by the Apex Court in the case of "Mukhtar Ahmad Awan" (1991 SCM R 322) while in a latest dicta the same view was reiterated by the Hon'ble Apex Court. Reference may be made to this effect to the case of "Mitho Pitafi v. The State" (2009 SCM R 299) and the view of this Court in the case of "Ghulam Qasim v. The State and another" (2008 PCr.LJ 1371).
' Accordingly, this petition for bail is allowed and the petitioner is directed to be released on bail provided he furnishes bail bond in the sum of rupees three lac (Rs.3,00,000) with two sureties each in the like amount to the satisfaction of Raga/Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means.