KASHIF ALI and anothers vs The STATE and another
This matter concerns a petition for post-arrest bail filed by two accused persons, Kashif Ali and Ali Ihtisham, in a criminal case registered under Sections 302, 324, 148, and 149 of the Pakistan Penal Code 1860. The prosecution alleged that the petitioners facilitated the principal accused by shouting 'Lalkaras' (incitement) during a murderous assault that resulted in one death and one injury. The core legal question was whether the petitioners were entitled to bail given the specific allegations of incitement and their subsequent declaration of innocence during the police investigation. The Court held that while police opinion is not binding, the petitioners' lack of direct physical involvement in causing injuries, combined with the finding of innocence during the investigation, warranted further probe into their culpability. The Court granted bail, emphasizing that the necessity of 'Lalkaras' is questionable when firearms are actively used in an incident. The key principle laid down is that where an accused is found innocent during investigation and lacks direct physical participation in the alleged crime, bail may be granted pending trial.
- Is the opinion of the police regarding the innocence of an accused binding upon the court during bail proceedings?
- Does the mere act of shouting 'Lalkaras' during a firearm assault constitute sufficient grounds to deny bail when no direct injury is attributed to the accused?
- When should a court grant post-arrest bail to an accused found innocent during the investigation stage?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
ORDER
MAZHAR IQBAL SIDHU, J.---Kashif Ali and Ali Ihtisham alias Saba petitioners have sought for post' arrest bail in a case registered against them and others on the complaint of Qaiser Abbas vide F.I.R.
No,158/11 dated 28-6-2011 under sections 302, 324, 148 and 149, P.P.C. At Police Station, Headmarala, District Sialkot.
2. Succinctly, the prosecution case is that petitioners along with their accomplices made murderous assault upon the complainant party resulted in death of Ghulam Haider and causing injuries to Aamer Abbas with fire arm weapons. Specific allegation against the petitioners is that they shouted Lalkaras before commencement of firing and continued to be so till culmination of incident.
3. Learned counsel for the petitioners submits that according to prosecution's own case, petitioners did not cause any injury to the deceased or to the injured PW; they have been falsely involved on account of their propinquity with the principal accused; they have joined investigation and nothing has been recovered from them; mere abscondence is no ground to refuse bail save as case is made out on merits. Further submits that investigation is over and they are no more required for further investigation, therefore, they may be granted bail.
4. Learned DPG assisted by learned counsel for the complainant has opposed submissions on the grounds that in typical way, petitioners kept on encouraging and facilitating to their accomplices through out the occurrence by morale support, ultimately, one person lost life and one received injuries, therefore, their participation is prima facie established on record. However, it has been brought to the notice of this court that both the petitioners have been found innocent during investigation.
5. Heard. Record perused.
6. Notwithstanding, the police opinion is not binding upon the court, even otherwise, court should not oscillate towards it solely, however, while granting bail merits are also required to be seen, therefore, on merits as per prosecution's case, petitioners did not cause any injury to the deceased as well as injured P.W. So far as shouting of Lalkaras during incident or before incident is concerned, whet! The firearm is used, then perhaps it would be needless to comment upon it that hardly any need of raising Lalkara exists. Partway investigation, petitioners have been found innocent, therefore, their involvement needs further probe. Thus, instant petition is allowed and petitioners are admitted to post arrest bail subject to their furnishing bail bonds in the sum of Rs,2,00,000 (two lacs) each with two sureties each in the like amount to the satisfaction of learned trial Court.