SHER AFZAL vs THE STATE and another
This criminal petition arises from an application for post-arrest bail in case F.I.R. No. 451 dated 23-8-2009 under sections 302, 324, and 34 of the Pakistan Penal Code 1860, registered at Police Station Topi. The core legal question is whether the petitioner is entitled to the concession of post-arrest bail given the specific role attributed to him during the occurrence and the applicability of common intention under section 34 of the Pakistan Penal Code 1860. The Peshawar High Court held that the petitioner, who was armed with a dagger and allegedly caused a single injury to a prosecution witness rather than the deceased, made no attempt on the life of the deceased, leaving the question of common intention one of further inquiry. Consequently, the petition was allowed and the petitioner was admitted to bail. The key principle laid down is that where an accused is not alleged to have attacked the deceased and the application of vicarious liability under common intention requires further assessment during trial, the case falls within the scope of further inquiry warranting the grant of bail.
- Whether an accused assigned a role of causing injury to a prosecution witness rather than the deceased is entitled to post-arrest bail when charged under sections 302, 324, and 34 of the Pakistan Penal Code 1860?
- Does the applicability of common intention under section 34 of the Pakistan Penal Code 1860 constitute a ground for further inquiry warranting the grant of bail?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
' LIAQAT ALI SHAH, J.- Petitioner Sher Afzal son of Nadir Khan resident of Khota, District Swabi seeks bail in case F.I.R. No, 451 dated 23-8-2009 under sections 302/324/34, P.P.C, of Police Station Topi.
2. Arguments of Mr. Muhammad Taif Khan, learned counsel for the petitioner, Mr. Muhammad Usman Khan Turlandi, Advocate, for the complainant and Mr. Amin-ur-Rahman, Advocate, for the State heard, considered and record perused.
3. The matter was reported to the police by Saifullah respondent No,2 in Civil Hospital, Topi wherein he has stated that on the eventful day, he along with Rahim Dad, after performing Maghrib prayer, were on the way to their home and at 2015 hours when reached near Flour Machine of one Abdul Wahab, there he saw his deceased son Waqas and Sher Afzal (petitioner) and Afzal Khan grappling with each other. Afzal Khan was armed with fire-arm whereas the petitioner was armed with a Chhuri; that when P.W. Abid Khan son of Naseer Muhammad came out and tried to separate the deceased and the accused when Afzal Khan, absconding co- accused fired at Waqas which proved effective and ultimately led to the death of his son Waqas. The petitioner is stated to have given dagger blows to Abid Khan. Motive for the offence is given to be an altercation. The occurrence is stated to have been witnessed besides the complainant by Rahim Dad Khan and Abid Khan.
4. Leaned counsel for the petitioner contended that the facts as given in the F.I.R, make the case of the petitioner one of further inquiry. Learned counsel for the respondent argued that the petitioner is not only liable for his own act but also vicariously liable for the act of his co- accused Afzal Khan who had made tiring at the deceased and who happens to be the brother of the petitioner &s well.
The learned counsel for the State half heartedly opposed the bail application.
5. The facts mentioned above would indicate that in the initial transaction where grappling is alleged and when the petitioner was stated to be armed with dagger, no attempt whatsoever was made at the deceased Waqas by the petitioner. The tragedy took place when, according to F.I.R., Abid Khan tried to separate the parties. Even at that stage too, the petitioner is not alleged to have made any attempt for causing any blow with the dagger to the deceased. He has been assigned the injuries caused to Abid Khan and according to the Medico-legal Report only one stab wound on left lower buttock was found on the person of the said Abid. In these circumstances, the fact of common intention is yet to be established and the petitioner is held to be entitled to the concession of bail.
6. For the reasons stated above, this petition is allowed and the petitioner is admitted to bail on furnishing of bail bonds in the sum of Rs, 200,000 with two sureties each in the like amount to the satisfaction of the trial Court.