Ahmed Ali and 2 others vs The State and another
This petition for post-arrest bail was filed by three petitioners facing charges under sections 302, 109, 148, and 149 of the Pakistan Penal Code 1860, read with section 7 of the Anti-Terrorism Act 1997. Following the withdrawal of the petition by one co-accused, the Court examined the cases of the remaining two petitioners. The Court noted that these petitioners were implicated during the third segment of the occurrence, assigned only generalized roles of aerial firing, and were found innocent by the investigating officer, resulting in their placement in column No. II of the report under section 173 of the Code of Criminal Procedure 1898. The Court held that the question of vicarious liability under sections 148/149 of the Pakistan Penal Code 1860 is a matter for trial after evidence is recorded and cannot be determined at the bail stage. Finding that the complainant had implicated a large number of persons, including several found innocent, the Court concluded that the petitioners' case fell within the scope of further inquiry under section 497(2) of the Code of Criminal Procedure 1898 and granted bail.
- Can the question of vicarious liability under sections 148/149 of the Pakistan Penal Code 1860 be determined at the bail stage?
- Does the fact that an accused was found innocent by the investigating officer and placed in column II of the report under section 173 of the Code of Criminal Procedure 1898 constitute grounds for further inquiry under section 497(2)?
- Is the wide implication of multiple accused persons by a complainant, where several are later declared innocent, a relevant factor in considering bail?
- Section 302, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 7, Anti-Terrorism Act 1997
- Section 173, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
Through this petition under section 497, Cr.P.C. Ahmed Ali, Muhammad Shafique and Asif Rafiq petitioners have sought post-arrest bail in case FIR No. 24/14, dated 19.01.2014 registered at Police Station 302/109/148/149, PPC read with section 7 of Anti-Terrorism Act, 1997.
2. After arguing the matter at some length learned counsel for the petitioners opted to withdraw this petition to the extent of Muhammad Shafique petitioner. This petition is, therefore, dismissed as having been withdraw to the extent of Muhammad Shafique petitioner.
3. So far as the case of Ahmed Ali and Asif Rafique petitioners No. 1 and 3 is concerned, after hearing the learned counsel for the parties and going through the record of this case with their able assistance it has been noticed by us that both of them have been introduced in this case during third segment of the occurrence and only generalized roles of making indiscriminating aerial firing from their Kalashnikovs have been assigned to them therein. Admittedly neither they have chased the deceased before taking place of occurrence nor have they caused any injury to both the deceased persons after completion of the occurrence so possibility of false implication of both the petitioners on the basis of previous enmity cannot be ruled out of consideration at this stage. Although according to the contents of FIR both the petitioners have been assigned aerial firing after the occurrence just to create sense of fear at the spot yet admittedly during the investigation nothing has been recovered from them by the investigating officer and that is why their names have been placed in column No. II of report under section 173, Cr.P.C. inasmuch as both of them have been found innocent by the investigating officer. Two co-accused of the petitioners namely Muhammad Rafique and Nazeer Ahmad have already been allowed post-arrest bail vide order dated 10.11.2014 passed by this Court in Criminal Miscellaneous No. 14773-B of 2014. Learned counsel for the complainant has vociferously argued to the effect that although the petitioners have not been assigned any overt act in the FIR yet the fact remains that provisions of sections 148/149, PPC equally incriminate them in this case for the alleged offence. We, however, remained unable to appreciate this submission of learned counsel for the complainant because law is quite settled on the point that vicarious liability of an accused or their committing the occurrence in pursuance of common object with his co-accused is a question which always considered by the learned trial court at the time of trial after recording evidence and such question cannot be determined at preliminary stage, without appreciating evidence in a criminal case. It is also a hard fact in this case that as many as ten persons have been involved by the complainant in this case out of whom five have already been declared innocent during the investigation of this case which fact shows that the complainant has spread the net wide to entangle maximum persons in this case for satisfaction of his vengeance because previous enmity is admitted by the complainant even in the FIR. So in prospect of such an eventuality false implication of both the petitioners namely Ahmed Ali and Asif Rafique cannot be ruled out of consideration.
4. For what has been discussed above the case against both the petitioners Ahmed Ali and Asif Rafique calls for further inquiry into their guilt within the purview of sub-section (2) of section 497, Cr.P.C. This petition is, therefore, allowed and the petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs. 2,00,000/- (Rupees two hundred thousand only) each with two sureties each in the like amount to the satisfaction of the learned trial court.