ACHAR vs THE STATE
This matter concerns an application for pre-arrest bail filed by the applicant, Achar Bhangwar, in connection with a criminal case involving charges of murder and other offences. The core legal question was whether the applicant, who was not present at the scene of the crime and to whom no specific overt act was attributed, was entitled to pre-arrest bail based solely on the allegation that he had instigated the co-accused. The court observed that the only evidence linking the applicant to the crime was the statement of the co-accused claiming they were sent by the applicant, which the court deemed inadmissible. Holding that the applicant's case required further inquiry, the court confirmed the interim pre-arrest bail. The key principle laid down is that where an accused is neither present at the scene of the occurrence nor assigned any specific overt act, and the prosecution's case rests solely on the inadmissible hearsay of co-accused regarding instigation, the case for bail is made out as it requires further inquiry.
- Is the statement of a co-accused claiming to have been sent by another person sufficient evidence to deny pre-arrest bail?
- Does the absence of an accused from the scene of the crime and the lack of an overt act attributed to him constitute grounds for further inquiry in a bail application?
- Can pre-arrest bail be confirmed when the prosecution concedes the plea?
- Section 302, Pakistan Penal Code 1860
- Section 147, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 504, Pakistan Penal Code 1860
- Section 137-H(2), Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
ORDER
1. AHMED ALI SHAIKH, J.-- Through this application, applicant Achar Bhangwar seeks pre-arrest bail in Crime No,15 of 2010 of Police Station Sarhari for offences under sections 302, 147, 148, 149, 504, 137- H(2), 109, P.P.C.
2. On 27-4-2010 complainant Abdul Reheem lodged the report in respect of an unhappy episode in which deceased Alam Khan lost his life. It is alleged that on 16-4-2010 at about 1530 hours, complainant, his brother Qaim, Muhammad Hashim and Alam Khan were present at their lands when accused Ghulam Nabi, Umer, Sikandar, Mir Hassan and Saifal duly armed with deadly weapons came there. After abusing the complainant party, they declared that they have been sent by Achar Bhangwar. Saying so, accused Ghulam Nabi made straight fire upon Alam Khan which hit him on his chest and fell down. Thereafter, accused went away by abusing the complainant party.
3. Alam Khan succumbed to his injuries in the way to hospital.
4. The motive of the alleged incident as disclosed in the F.I.R. is that there was dispute between the complainant party and accused Ghulam Nabi and others over the agricultural land.
5. It is inter alia contended by learned counsel for the applicant that applicant is innocent and has no nexus with the alleged incident, neither the applicant was present at the place of incident nor caused any injury to the deceased. It is lastly contended that only allegation against the applicant is that on his instigation co-accused committed the murder of deceased.
6. Learned A.P.-G. for the State did not controvert the contentions raised by learned counsel for applicant and conceded the bail plea of the applicant.
7. Heard and perused.
8. Upon perusal of F.I.R., it appears that accused Kirir, Hashim, Raheem, Qaim and Qasim committed the murder of deceased Saifal by causing him fire arm injuries. Neither the applicant was present at the time of occurrence nor any overt act is attributed to him. Per prosecution the co-accused while committing the murder of deceased Saifal disclosed that they have been sent by present applicant. Since the applicant was neither present at the place of occurrence nor any role is assigned to him and the only evidence against the present applicant is mere words of co-accused that they have been sent by applicant which is in admissible piece of evidence and cannot be relied upon.
9. For the foregoing reasons, I am of the considered view that case of applicant requires further inquiry. Consequently, interim pre-arrest bail earlier granted to the applicant on 21-6-2010 is hereby confirmed on same terms and conditions.