ZAFAR and another vs THE STATE and another
This matter arises from a petition filed by Zafar and Sher Zaman seeking post-arrest bail in case F.I.R. No. 220 registered under sections 302, 324, 148, and 149 of the Pakistan Penal Code at Police Station Jandanwala, District Bhakkar. The core legal question concerns whether the petitioners are entitled to post-arrest bail where mere effective firing is attributed to them without a specific fatal role ascribed in the F.I.R., and whether the commencement of the trial acts as a bar to granting bail. The court held that the case falls within the scope of further inquiry under subsection (2) of section 497 of the Code of Criminal Procedure 1898, and that the mere commencement of a trial does not act as a clog on granting bail if the accused is otherwise entitled to it. The court laid down the principle that tentative assessment of vicarious liability can warrant further inquiry for bail purposes, and ongoing trial proceedings do not automatically bar the concession of bail.
- Does the mere commencement of a trial act as a bar to granting post-arrest bail?
- Whether attribution of general effective firing without a specific fatal role brings a case within the purview of further inquiry under section 497(2) of the Code of Criminal Procedure 1898?
- Can bail be granted when the question of vicarious liability requires further assessment at trial?
- Section 302, Pakistan Penal Code
- Section 324, Pakistan Penal Code
- Section 148, Pakistan Penal Code
- Section 149, Pakistan Penal Code
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' CH. IFTIKHAR HUSSAIN, J.---Petitioners Zafar and Sher Zaman by way of the instant petition have prayed for post-arrest bail in case F.I.R. No, 220 registered under sections 302/324/148/149, P.P.C.
With Police Station Jandanwala, District Bhakkar on 11-11-2009.
2. Briefly the prosecution case as per the F.I.R. Is that on 11-11-2009 at about 2-00 p.m. Saif Ullah and others, having fire-arms, in prosecution of the common object of the unlawful assembly formed by them, have committed the qatl-e-amd of Mst. Kanizan Bibi and attempted the qatl-e-amd of Mst.
Farzana Bibi, by firing on them with their respective weapons.
3. After hearing the learned counsel for the parties and perusing the record, I find that according to the F.I.R., mere effective firing is attributed to them. No role qua the deceased or the said injured is ascribed to them. The question, thus of their vicarious liability for the qatl-e-amd of the deceased and attempt to commit qatl-e-amd of Mst. Farzana Bibi is to be gone into at trial.
4. Their case, therefore, is covered within the mischief of subsection (2) of section 497, Cr.P.C.
Calling for further inquiry into their guilt.
5. They are behind the bars and stated to be previous non-convicts, which has not been controverted by the other side. However, it has been argued by the side of the complainant that their trial has commenced and so, at such a stage, it may not be appropriate to enlarge them on bail.
6. I am afraid that perhaps such submission is not tenable in view of the case of Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 Supreme Court 585). It has been held by their lordships in that case that when case of an accused may, otherwise, be found fit for bail, then mere commencement of trial cannot come as clog in the way of the same.
7. I, therefore, accept this petition and admit them to bail subject to their furnishing bail bonds in the sum of Rs,1,00,000 (Rupees one lac only) each with one surety each in the like amount to the satisfaction of the learned trial Court.
8. However, it is hereby clarified that the above observations are tentative in nature and meant only for the disposal of the matter in hand. These shall have no bearing at all on anybody's case at trial.