SIKANDAR vs THE STATE And Another
This post-arrest bail application was filed by the petitioner, Sikandar, in FIR No. 406 registered under Sections 302, 148, 149, and 109 of the Pakistan Penal Code 1860 at Police Station Chenab Nagar, District Chiniot. The core legal question was whether an accused ascribed only ineffective firing and found not present at the spot during police investigation is entitled to bail under Section 497(2) of the Code of Criminal Procedure 1898. The Lahore High Court accepted the petition and granted bail. The Court observed that the petitioner was merely alleged to have fired ineffectively, police investigation established he was not present at the spot, and no recovery was made from him. The Court held that despite a motive being attributed to him, his case required further inquiry under Section 497(2), Cr.P.C. Additionally, relying on Supreme Court precedent, the Court affirmed that the commencement of trial does not operate as a clog on granting bail.
- Whether an accused ascribed only ineffective firing and found absent from the scene during investigation is entitled to bail under Section 497(2) Cr.P.C.?
- Does the commencement of trial act as a bar to granting post-arrest bail to an accused whose case falls under further inquiry?
- Section 302, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER CH. IFTIKHAR HUSSAIN, J.---Petitioner Sikandar through the instant petition has prayed for after arrest bail in case F.I.R. No.406 registered under sections 302, 148, 149, 109, P.P.C. With Police Station Chenab Nagar, District Chiniot. On 2-9-2009.
2. Briefly the prosecution case as per the F.I.R. Is that on 2-9-2009 at about 8-30 a.m. Doosa and others, while having firearms, in prosecution of the common object of the unlawful assembly formed by them, have committed the qatl-e-and of deceased Malak Sher and attempted on the lives of the complainant party. It was on account of abduction of the daughter of Sikandar by one Akhtar, the nephew of the deceased and the accused had been demanding her restoration but the deceased had refused.
3. After hearing the learned counsel for the parties and perusing the record, I find that the only role ascribed to him in the commission of the alleged crime is that he along with one Mushtaq had made straight tires on the complainant party but the same did not prove effective. Besides than this, there is no other role ascribed to him in the entire alleged incident.
4. According to the learned DPP, he during the investigation by one Muhammad Arshad, SA. Has been found to be not present at the spot at the relevant time and it was merely that the incident had taken place on his abetment. According to him, he has been challaned to the court merely on the reason that the motive was attributed to him. I am afraid that in such situation, when the only above role of ineffective firing is ascribed to him and his presence at the spot has not been found to be there at the relevant time in the investigation and no recovery admittedly effected from him, it would yet to be seen at trial that if he ultimately can be held liable for the alleged offence. His case, thus, is open to further inquiry into his guilt and so, covered under subsection (2) of section 497, Cr.P.C.
5. He is stated to be behind the bars for the last about seven months Although according to the learned counsel for the complainant, the prosecution evidence has been summoned, but according to the case of "Muhammad Ismail v. Muhammad Rafique and another" (PLD 1989 SC 585) the commencement of trial cannot come as a clog in the way of relief of bail to him.
6. In these circumstances of the case, I have been persuaded to hold that the case for his enlargement on bail has been made out.
7. I, therefore, accept this petition and admit him to bail, subject to his furnishing bail bonds in the sum of Rs.2,00,000 (Rupees two lac only) with two sureties 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..