PERVAIZ vs The STATE and another
The petitioner sought post-arrest bail in a criminal case registered under sections 302 and 34 of the Pakistan Penal Code 1860 at Police Station City District Chiniot, involving allegations of entering the complainant's house and participating in a murder. The core legal question was whether the petitioner was entitled to post-arrest bail when the fatal firearm injury was attributed to a co-accused and no incriminating recovery was made from the petitioner. The Lahore High Court held that the case against the petitioner fell within the purview of further inquiry under subsection (2) of section 497 of the Code of Criminal Procedure 1898, as there was no allegation of causing firearm injury against him and he had been incarcerated for a significant period without any recovery. Consequently, the court allowed the petition and admitted the petitioner to post-arrest bail subject to surety bonds, laying down the principle that tentative assessment favoring further inquiry warrants bail where active participation in the fatal assault is absent and no recovery is effected from the accused.
- Whether an accused is entitled to post-arrest bail when the fatal firearm injury is attributed to a co-accused rather than the petitioner?
- Does the absence of recovery of any weapon at the instance of the accused during investigation make the case one of further inquiry under Section 497(2), Code of Criminal Procedure 1898?
- Whether prolonged incarceration without the requirement of further investigation justifies the grant of bail in a murder case?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' MANZOOR AHMAD MALIK, J.---Pervaiz, petitioner seeks post arrest bail in case F.I.R. No,281 dated 2- 4-2013 offence under sections 302 and 34, P.P.C. Registered at Police Station City District Chiniot.
2. Precisely the allegation against the petitioner, as per F.I.R., is that he along with his co-accused while armed with pistols entered the house of complainant and Kashif accused fired at Mst. Sahib Bibi wife of complainant who died at the spot.
3. After hearing the learned counsel for the parties and going through the record, it has been observed as follows:--
(a) As per F.I.R., the allegation against the petitioner is that he along with his co-accused namely Kashif and one unknown person entered the house of complainant. There is no allegation of causing firearm injury on the person of the deceased or anybody else against the petitioner and the allegation of causing firearm injury to the deceased is confined to the extent of Kashif co- accused of the petitioner.
(b) As confirmed by the learned DDPP under instructions and after perusal of record, no recovery of pistol was effected At the instance of the petitioner during the course of investigation.
(c) The petitioner is behind the bars since 14-5-2013 and no more required for the purpose of investigation.
4. For what has been observed above, I have found that the case against the petitioner is one of further inquiry within the ambit of subsection (2) of section 497, Code of Criminal Procedure. This petition is, therefore, allowed and the petitioner is admitted to bail after arrest subject to his furnishing bail bond in the sum of Rs, 2,00,000 (rupees two lakh only) with one surety in the like amount to the satisfaction of the learned trial court.
5. Before parting with this order, it is clarified that the observations made in this order are purely tentative in nature and relevant only for the disposal of this bail petition, which shall not influence the learned trial court in any manner whatsoever.