BAKHT ZADA vs STATE and another
This criminal petition arises from the refusal of bail by two lower courts to the petitioner, Bakht Zada, who is charged in FIR No. 582/2013 under Sections 302, 148, and 149 of the Pakistan Penal Code 1860 for the Qatl-e-Amd of the deceased, Akbar Ali. The core legal question was whether the petitioner, who was initially charged with firing but later assigned only the role of abetment and presence at the scene in the site plan, was entitled to the concession of bail. The Court held that since no overt act was assigned to the petitioner and no crime empties were recovered from his location, his involvement and the sharing of common intention constituted debatable questions for trial, rendering his case one of further inquiry. The Court granted bail, establishing the principle that bail should not be refused solely because an accused is charged with a heinous offence in an FIR if the case otherwise warrants relief, as unjustified incarceration cannot be adequately repaired, whereas mistaken bail can be rectified upon conviction.
- Does the absence of an overt act attributed to an accused in a murder case render the case one of further inquiry for the purpose of bail?
- Can bail be refused in a heinous offence solely on the ground of the gravity of the charge if the prosecution's case is otherwise debatable?
- Is the discrepancy between an initial FIR report and a subsequent site plan regarding the specific role of an accused a valid ground for granting bail?
- Section 302, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
' Petitioner Bakht Zada, being abortive to get the concession of bail from two Courts below, through this further application seeks the same concession from this Court in case FIR No, 582 dated 10.09.2013, registered under Sections 302/148/149, PPC, at Police Station Sadder Mardan, wherein he along with co-accused Jehan Noor, Irshad, Shamshad, Siraj and Muhammad Zada, is charged for committing the Qatl-e-Amd of Akbar Ali deceased with fire-arms on the basis of previous blood feud.
2. Arguments of learned counsel for the parties and learned AAG for the State heard and record perused with their able assistance.
3. It appears from the record that in her initial report, Mst. Hamida complainant, charged directly six accused including the petitioner for committing the murder of Akbar Ali deceased her brother-in- law, by attributing the role of firing to all the accused, however, she later on, in the site-plan assigned the role of firing to absconding co-accused Irshad and Shamshad and charged the present petitioner for abetment by showing his presence on the spot duly armed with fire-arm. No crime empty has been recovered from the place of the petitioner as indicated in the site-plan.
When no overt act has been assigned to the petitioner, in the circumstances, whether the petitioner was present at the scene of occurrence and if at all he was, whether he shared common intention and abetted the offence, are the debatable questions to be answered by the prosecution during trial, however, at the moment these make the case of the accused/petitioner arguable for the purpose of bail. Guidance in this regard may be derived from unreported judgment of the apex Court in Criminal Petition No, 16 -P of 2015, titled, Sahibzada vs. The State and another" decided on 11.03.2015. It is settled law that bail may not be refused merely on the ground that accused is directly charged in the F.I.R for a heinous offence, when otherwise, he is found entitled to concession of bail because any mistaken relief of bail, can be repaired by convicting the accused, if proved guilty at the trial, but no proper reparation can be offered for his unjustified incarceration, albeit, his acquittal in the long run.
4. For the reasons discussed above, this petition is allowed. Petitioner is directed to be released on bail provided he furnishes bail bonds in the sum of Rs, 3,00,000/- with two sureties each in the like amount to the satisfaction of learned Illaqa Judicial Magistrate/MOD, concerned.