SHABAN etc. vs STATE etc.
This criminal petition concerns a request for post-arrest bail by two petitioners, Shaban and Allah Rakha, who were charged under Sections 302 and 34 of the Pakistan Penal Code 1860 for the murder of Mst. Ayesha. The core legal question was whether the petitioners were entitled to bail given the absence of specific overt acts attributed to them in the FIR and the subsequent exoneration by the complainant and prosecution witnesses. The Court observed that the petitioners had been incarcerated since May 2011, no specific injuries were attributed to them, and the complainant had filed affidavits and appeared in court to state that the petitioners were implicated due to a misunderstanding and that he had no objection to their release. Holding that the case fell within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898, the Court granted the bail petition, emphasizing that the issue of common intention remains a matter for the trial court to determine after recording evidence.
- Does the absence of specific overt acts attributed to an accused in an FIR justify the grant of bail under the principle of further inquiry?
- Can a complainant's statement and affidavit exonerating the accused be considered by the court when deciding a post-arrest bail petition?
- Does the fact that an accused is not alleged to have caused specific injuries to the deceased bring their case within the ambit of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER
Through this petition, petitioners Shaban and Allah Rakha seek post arrest bail in case FIR No, 218/2011 dated 13.05.2011 registered under Sections 302, 34 PPC at Police Station Luddan District Vehari.
2. Allegation against the petitioners as contained in the FIR is that they alongwith their co-accused Mumtaz committed murder of Mst. Ayesha, mother of the complainant over a dispute of property, inherited by the deceased.
3. Learned counsel for the petitioners submits that the allegation levelled in the FIR is totally false; that according to FIR no overt act is attributed to the petitioners; that during the pendency of post arrest bail before the learned Addl. Sessions Judge, Vehari, the complainant namely Muhammad Idrees and PWs Muhammad Sajjad and Muhammad Saeed sworn their affidavits to the effect that the petitioners have been involved in this case due to some misunderstanding; that during the investigation no incriminating material has been brought on record against the petitioners to connect them with the commission of offence; that the petitioners are behind the bars and they are no more required, by police for further investigation; hence, they are entitled to the concession of post arrest bail.
4. On the other hand, learned Deputy Prosecutor General has opposed the bail petition and prayed for its dismissal.
5. Arguments heard. Record perused.
6. Perusal of record reveals that both the petitioners were arrested on 29.5.2011 and since then they are behind the bars. Challan of the case has been submitted to the Court of competent jurisdiction but the same is not in progress. According to prosecution version, the petitioner did not cause any injury to the deceased and the injuries caused to the deceased are attributed to co-accused of the petitioners namely Mumtaz. The complainant present in the Court has himself stated that he has no objection if the petitioners are admitted to post arrest bail. He has also submitted that he alongwith PWs Muhammad Saeed son of Muhammad Arif and Sajjad son of Haji Muhammad Nawaz had submitted their affidavits before the learned Addl. Sessions Judge, Vehari to the effect that the petitioners are not their accused and due to some misunderstanding their names were mentioned in the FIR. Learned Addl. Sessions Judge, Vehari has also mentioned this fact in is order dated 30.06.2011. In the light of aforesaid circumstances, and the fact that the petitioners did not cause any injury to the deceased or any PW, case of the petitioners falls within the ambit of further under Section 497(2) Cr.P.C. The common intention and involvement of the petitioners in this case will be seen by the learned trial Court after recording of evidence.
7. For what has been discussed above, instant petition is allowed and the petitioners are admitted to post arrest bail subject to their furnishing bail bonds in the sum of Rs, 100,000/- (rupees one lac only) each with one surety each in the like amount to the satisfaction of learned trial Court.