Faisal Mehmood vs The State, Etc.
This matter concerns a petition for post-arrest bail filed by Faisal Mehmood, who was charged under Sections 302, 148, and 149 of the Pakistan Penal Code 1860 for his alleged involvement in a murder case. The core legal question was whether the petitioner, who was accused of escorting the deceased to the location of the crime, was entitled to bail given the evidentiary discrepancies and the lack of specific attribution of a fatal act. The Court held that the petitioner was entitled to bail, noting that key prosecution witnesses, including the widow of the deceased, did not nominate the petitioner in their statements under Section 161 of the Code of Criminal Procedure 1898, unlike the other co-accused. Furthermore, no recovery was effected from the petitioner. The Court established the principle that where there is a significant distinction between the roles attributed to co-accused and the prosecution evidence against a specific accused is weak or contradictory, the case falls under the category of further inquiry, thereby justifying the grant of post-arrest bail under Section 497(2) of the Code of Criminal Procedure 1898.
- Does the absence of an accused's name in statements recorded under Section 161 of the Code of Criminal Procedure 1898 constitute grounds for further inquiry in a bail application?
- Is an accused entitled to post-arrest bail when no recovery is effected from him and prosecution witnesses fail to nominate him?
- Can an accused be granted bail if his role is distinguishable from co-accused who have confessed or are directly implicated?
- Section 302, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
ALI BAQAR NAJAFI, J. - Petitioner, Faisal Mehmood son of Jahandad, seeks his post-arrest bail in case F.I.R. No. 471, dated 14.08.2012, for offences under:- Sections 302, 148, 149, P.P.C., registered at Police Station Saddar Bairooni, Rawalpindi.
2. Precisely, the Story as narrated in the F.I.R, registered on the written application of Inayat Hussain son of Bahadur Khan, complainant, is that he has three sons and one daughter and one of his sons, namely, Mohsan Ali, is married and has a new born baby of 10 days; on the day of ; occurrence i.e. 03.08.2012 his grand maternal son, namely, Faisal (petitioner) came to his house and took Mohsan Ali with him to the house of Qazi Majeed for registration of the name of the said baby; but at 12.30 p.m. He was told that his son has been murdered by Sajid Hussain, Manazir Hussain and Wajid Hussain sons of Qadir Ali Riasat son of Nazar Hussain Nadir Ali son of Bahadur Ali by inflicting him chhuri blows.
The motive behind the occurrence is the dispute of land and the betrothal of Mst. Saira Bibi with the son of Nadir Ali namely. Wajid Hussain. Mohsin Ali deceased was seen by the witnesses mentioned in the F.I.R, escorting to the house of the accused.
3. Learned counsel for the petitioner submits that the case Of the petitioner is slightly different from the co- accused whose bail was rejected by this Court on 16.10.2012 passed in Crl. Misc. No. 1526- B/2012.
The petitioner is a maternal grand son of the complainant; that the recovery was effected from the co-accused Sajid and nothing was to be recovered from the petitioner; that there is no eyewitness of the occurrence nor any role is attributed to him with regard to he accompanying the deceased as well as leaving his home; that co-accused Sajid has already confessed his guilt; that co- accused Naadir Khan has been granted bail; that he was declared innocent by the police. He places reliance on Manzoor Hussain and another v. The State (2011 SCM R 902), Subeh Sadiq alias Saabo alias Kalu v. The State and others (2011 SCM R 1543) and Mazhar Hussain v. The State and another (2012 SCM R 887) to argue that the vicarious liability, previous enmity and roping the entire family in the criminal case, are the questions which require further inquiry; that the statements of the prosecution witnesses under Section 161, Cr.P.C, do not specifically nominate the petitioner as an accused person.
4. Conversely learned D.P.G, assisted by the learned counsel for the complainant submit that ; the petitioner is nominated in the F.I.R, with a specific allegation that he is the one who brought the deceased from his home with premeditated criminal intent and long consuItation with the co- accused; that the petitioner resides in the adjacent house of the deceased and he carnes grudge against him; that the widow of the deceased and Bilal Arif PW fully implicate the petitioner in the commission of offence. Pray for dismissal of the bail application.
5. I have heard the learned counsel for the parties and perused the record.
6. Admittedly, the allegation against the petitioner is that he brought the deceased out of the home where after he was found dead in the house of Sajid co- accused. It is pertinent to note that PW, Shafqat Hussain does not name the petitioner as an accused. Similarly, the widow of the deceased Saira Bibi also does not mention him as an accused in her statement under Section 161, Cr.P.C, whereas co-accused were nominated as accused persons by the said two PWs. No recovery was effected from the petitioner, In this view of the matter, the case of the petitioner is distinguishable from his co-accused, therefore, he has made out a case of further inquiry into his guilt as contemplated under sub-section(2) of Section 497, Cr.P.C.
7. Resultantly, this petition is accepted and the petitioner is admitted to post-arrest bail provided he furnishes bail bonds in the sum of Rs. 200,000/- (two lac) with two sureties each in the like amount to the satisfaction of the learned Trial Court.