MUHAMMAD ANWAR vs The STATE
This matter concerns a petition for leave to appeal against an order of the Lahore High Court, which had previously dismissed the petitioner's application for bail in a murder case. The core legal question was whether the petitioner, who was alleged to have held the deceased (Japha) while co-accused inflicted fatal injuries, was entitled to bail given that other co-accused persons facing similar allegations of participation in the unlawful assembly had already been granted bail, and considering the significant delay in the commencement of the trial. The Supreme Court of Pakistan held that the petitioner deserved to be released on bail during the pendency of the trial. The Court converted the petition into an appeal and granted bail, noting the parity in the treatment of co-accused persons and the prolonged incarceration of the petitioner without the trial commencing. The key principle laid down is that where co-accused persons facing similar allegations of vicarious liability under Section 149 of the Pakistan Penal Code 1860 have been granted bail, the principle of consistency and parity applies, particularly when coupled with an inordinate delay in the trial process.
- Whether a petitioner is entitled to bail when co-accused persons facing similar allegations of vicarious liability have already been granted bail?
- Does a significant delay in the commencement of a trial justify the grant of bail to an accused charged with murder?
- Is an accused who allegedly facilitated a murder by holding the deceased entitled to bail if the fatal blow was attributed to a co-accused?
- Section 148, Pakistan Penal Code 1860
- Section 307, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 302, Pakistan Penal Code 1860
ORDER
1. NASIM HASAN SHAH, J. - The petitioner seeks leave to appeal against the order of the Lahore High Court dated 21st January, 1976 whereby his application for bail was dismissed.
2. The facts of this case as disclosed in the F. I. R. Are that about three days before the occurrence Muhammad Yousaf came to see Rab Nawaz, the brother of the complainant (Shah Nawaz) asking him for some loudspeakers, as he used to keep them, upon Rab Nawaz refusing to oblige an altercation ensued. The deceased Haq Nawaz the brother of the complainant happened to be present there joined in the alter--cation and grabbed Yousaf's neck exclaiming that they cannot give loud speakers to rascals. This annoyed Yousaf who threatened to avenge his insult.
3. On this fateful day Haq Nawaz deceased along with the complainant was returning at about 6.00 p. m. To his house from a fair. When they reached near the well of Ch. Mohammad Din, the petitioner (Mohammad Anwar) who along with his co-accused was sitting in ambush, attacked the deceased and the complainant. Mushtaq clasped the complainant from behind to prevent him from intervening, while Ehsan Ullah took out a pistol from his dub and shouted that he will shoot any one who dares to intervene. The petitioner allegedly caught hold of the deceased while his co- accused Yousaf and Pervaiz gave knife and sota blows respectively. However, on being entreated by Nasrullah and Noor Muhammad, the accused persons left the place of occurrence. A case was registered on 29th May, 1974 under sections 148 and 307/149, P. P. C. But later amended to section 302, P. P. C. When Haq Nawaz died as result of injuries sustained in the above incident.
4. The learned Judge in the High Court refused bail on the ground that the petitioner had facilitated the commission of murder, and as at the time of the commission of the offence he was a member of the unlawful assembly, therefore, he is equally responsible under section 149, P. P. C. For the death of Haq Nawaz deceased.
5. The learned counsel for the petitioner submits that the petitioner is entitled to be released on bail, inter alia, on the grounds that only Japha has been attributed to him while the fatal blow was allegedly given by Yousaf, that the case of the petitioner was. Indistinguishable from that of Mushtaq and Ehsan who had been enlarged on bail. Furthermore even Pervaiz had been granted bail and that he has been in jail for more than three years and that there, is still go likelihood of the trial commencing in near future.
6. Having heard the counsel for the petitioner and Mr. Iftikharul Haq' Khan for the State we are- of the opinion that there is force in the plea that the petitioner deserves to be released on bail during the pendency of the trial. As the counsel for the State has been heard at length we would accordingly convert the petition into an appeal and order the petitioner to be released on bail in the sum of Rs.
7. 10,000 and on furnishing a surety in the Plaintiff of Rs. 10,000 to the satisfaction of A. C., Daska.