AFRIDI KHAN vs The STATE and another
The petitioner sought post-arrest bail in a case registered under section 302/34 of the Pakistan Penal Code 1860, relating to the murder of the deceased over a land dispute. The core legal question was whether the petitioner was entitled to bail on the principle of further inquiry when he was charged with common intention but eye-witnesses and the site plan attributed the actual firing role to an absconding co-accused. The Peshawar High Court held that the petitioner's participation and common intention required further probe during trial upon a tentative assessment of the available record. The court reasoned that bail should not be refused solely because an accused is directly charged with a heinous offence in the FIR if they are otherwise entitled to it, as pre-trial incarceration cannot be adequately compensated by a subsequent acquittal. Consequently, the bail petition was allowed.
- Whether an accused charged under section 302/34 PPC is entitled to post-arrest bail when the specific role of firing is attributed to an absconding co-accused?
- Can bail be refused solely on the ground that the accused is directly charged in the FIR for a heinous offence?
- Does the question of common intention require further probe when an accused has not actively participated in the crime according to the tentative assessment of the record?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
ORDER
ASSADULLAH KHAN CHAMKANI, J.---Petitioner Afridi Khan, seeks bail in case FIR No,530 dated 23.08.2015, registered under section 302/34, P.P.C_ in Police Station Sarband, wherein he along with absconding co-accused Mazhar and Inayat is charged for committing the Qatl-i-amd of Muhammad Saqib deceased son of complainant Farash Khan on 23.08.2015 at 18.45 hours near his house with firearm on a motive of land dispute.
2. Arguments heard and record perused.
3. Admittedly, complainant Farash Khan is not the eye-witness of the incident while PW Mst. Gul Shajara and Mst. Shabana the alleged eye-witnesses have specifically assigned the role of firing at the deceased to absconding co-accused Inayat, in their statements under section 161, Cr.P.C.
Similar position has also been shown in the site plan where the role of firing has been attributed to absconding co-accused Inayat. The question of common intention is a state of mind of an accused, which cannot be determined without recording evidence, when he has not actively participated in the crime, therefore, in the circumstances common intention of the petitioner with the absconding co-accused/ principal accused in the commission of offence is yet to be determined during trial after recording evidence. At the moment, on tentative assessment of the material available on record, participation of the petitioner in the commission of offence requires further probe into his guilt. It is settled law that bail may not be refused merely on the ground that accused is directly charged in the FIR for a heinous offence, when otherwise, he is found entitled for concession of bail because 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 above reasons, this petition is allowed. Accused/ petitioner is admitted to bail provided he furnishes bail bonds in the sum of Rs,3,00,000/- with two local, reliable and resourceful sureties each in the like amount to the satisfaction of learned Illaqa Judicial Magistrate/MOD concerned.
Cited by 1 case
- HABIBULLAH vs QADIR KHAN and 2 others 2018 P Cr. L J 481