ZULFIQAR alias BADNA vs THE STATE
The applicant sought post-arrest bail in Crime No. 316 of 2010 registered under Sections 302 and 34 of the Pakistan Penal Code at Police Station Sanghar. The core legal question was whether the applicant was entitled to bail where no overt act was assigned, no recovery was made, previous enmity existed between the parties, and his liability was vicarious through common intention under Section 34. The Sindh High Court held that the applicant made out a case for further inquiry under Section 497(2) of the Code of Criminal Procedure, noting that false implication could not be ruled out and common intention required recording of evidence. The court accordingly admitted the applicant to post-arrest bail upon furnishing required sureties, establishing the principle that tentative assessment of evidence at the bail stage pointing towards further inquiry warrants the grant of bail where no overt act or recovery is attributed.
- Whether bail can be granted under Section 497(2) of the Code of Criminal Procedure when no overt act or recovery is attributed to the accused?
- Does the applicability of Section 34 of the Pakistan Penal Code without a distinct overt act at the bail stage justify keeping an accused behind bars?
- Whether previous enmity between the parties is a relevant consideration for assessing the probability of false implication while deciding a bail application?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 427, Pakistan Penal Code 1860
- Section 109, 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 497, Code of Criminal Procedure 1898
ORDER
1. ' MUHAMMAD TASNIM, J. Applicant is booked in Crimc No.316 of 2010, under section 302. 34 P.P.C. Of Police Station Sanghar.
2. ' Applicant initially applied for bail before the learned Additional Sessions Judge, Sanghar who dismissed the bail application per order dated 10th May, 2011. Against the aforesaid order, present bail application has been filed.
3. ' Facts as set out in the F.I.R. Are that complainant Din Muhammad received an information from Karim Bux that Abdul Rehman has received fire arm injury. Accordingly, complainant along with Naseer Brohi and son Asif on a car reached at the spot where police also reached. The complainant saw that Abdul Rehman had sustained fire arm injury on backside and substantial blood had oozed from his injury. It is further claimed that Abdul Rehman at that time was dead and his dead body was taken to the Hospital. Thereafter F.I.R. Was lodged.
4. ' Learned counsel for the applicant in support of his bail application has submitted that no overt act has been assigned to the present applicant who was simply riding the motorcycle. He further says that applicant along with co-accused Ghulam Rasool has been booked in a Crime due to previous enmity with the complainant party as deceased Abdul Rehman had lodged Crime No.27 of 2008 under sections 324, 427, 109, 147, 148, 149 and 504 P.P.C. Learned counsel further says that neither any role has been assigned to the present applicant nor any recovery was effected from him though he was arrested by police on 20-12-2010.. Learned counsel further submits that no description of the motorcycle has been mentioned in the F.I.R. With regard to the common intention, learned counsel submits that it is yet to be decided by the trial Court as to whether prescnt applicant had any common intention with the commission of offence or not. In support of his contentions, learned counsel has relied upon the cases of Haji Hayder and another v. The State (2004 PCr.LJ 2064), Ghulam Murtaza v. The State (2004 PCr.LJ 296), Muhammad v. The State (1998 SCM R 454) and Muhammad Sadiq and another v. The State (1996 SCM R 1654).
5. ' Conversely learned A.P.-G. Has formally opposed the grant of bail to the present applicant.
6. Learned A.P.-G. Says that present applicant may not be enlarged on bail as he had the common intention in committing the bffence along with co-accused Ghulam Rasool. In support of his contention, learned A.P.G has placed reliance on the case of Muhammad Akram v. The State and others (2007 SCM R 1539).
7. ' I have heard the learned counsel for the parties and have perused the record.
8. ' From the perusal of record, it A appears that no overt act has been assigned to the present applicant. No recovery has been effected from the applicant admittedly. Description of the motorcycle is also not mentioned. It is also an admitted position that deceased had lodged F.I.R.
9. No.27 of 2008 in which co-accused Ghulam Rasool was cited as an accused person. In the circumstances of the case, false implication A of the applicant cannot be ruled out. Even otherwise, as far as the present applicant is concerned, he has been implicated under section 34, P.P.C. And at this stage it cannot be decided as to whether he had any common intention to commit the offence with co-accused Ghulam Rasool unless evidence is recorded on such point.
10. ' In the above circumstances, the applicant has successfully made out a case for further inquiry in terms of subsection (2) of section 497, Cr.P.C. Accordingly, the applicant is admitted to bail on his furnishing solvent surety in the sum of Rs.100,000 (One lac) and P.R. Bond in the like amount to the satisfaction of the learned trial Court.
11. ' Bail Application is disposed of.