IKHTIAR and 2 otherss vs The STATE and another
This criminal petition concerns the bail application of three petitioners, Ikhtiar, Kashif, and Gul Muhammad, who were charged under sections 302/324/34 of the Pakistan Penal Code 1860 for their alleged involvement in a murder case registered at Police Station Regi. The core legal question was whether the petitioners were entitled to the concession of bail despite being charged with a heinous offence and having absconded. The Peshawar High Court observed that the specific role of firing at the deceased was attributed to an absconding co-accused, while the petitioners were only alleged to have aimed weapons at the complainant and fired ineffectively. The Court held that the petitioners' active participation and common intention remained a matter for trial, rendering their case arguable for bail. Establishing the principle that bail should not be refused solely due to a direct charge in a heinous offence when the case is otherwise arguable, the Court emphasized that unjustified incarceration cannot be repaired, whereas mistaken bail can be rectified by conviction. Consequently, the bail petition was allowed.
- Whether bail can be refused solely because an accused is directly charged in an FIR for a heinous offence?
- Does the mere absconsion of an accused automatically disqualify them from the concession of bail?
- Is bail appropriate when the active participation of the accused in a murder remains a matter for trial determination?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
' ASSADULLAH KHAN CHAMKANI, J.---Petitioners 1. Ikhtiar 2. Kashif and 3. Gul Muhammad, seek bail in case FIR No,274 dated 16.08.2014, registered under sections 302/324/34, P.P.C., in Police Station Regi wherein they along with absconding co-accused Imtiaz are charged, for committing the murder of Nishad Khan on 16.08.2014 at 15.30 hours inside the Baithak of complainant Taza Khan, with firearms.
2. Arguments heard and record perused.
3. Admittedly, the role of firing at the deceased has been specifically attributed to absconding co- accused Imtiaz. The only role attributed to present petitioners is that they while aiming their weapons at the complainant warned him not to move, and later on, when the complainant tried to apprehend absconding co-accused Imtiaz after murder of his son, the petitioners opened fire at the complainant, but it proved ineffective. On tentative assessment of the material the petitioners have not actively participated in the murder of the deceased, therefore, their common intention with the principal absconding co-accused as well as their intention to kill the complainant who was at their mercy is yet to be determined during trial after recording evidence, which makes the case of the petitioners arguable for the purpose of bail. It is settled law that bail may not be refused merely on the ground that accused are directly charged in the FIR for a heinous offence, when otherwise, they are found entitled to the 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 their unjustified incarceration, albeit, their acquittal in the long run. As on merits, case of bail has been made out, therefore, mere absconsion of the petitioners cannot be a ground for refusal of bail in light of ratio of judgment of the apex Court in case titled, "Mitho Pitafi v. The State"
2009 SCM R 299.
4. For the reasons discussed above, this petition is allowed. Accused/petitioners are admitted to bail provided each one of them 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 Biala Judicial Magistrate/MOD concerned.
Cited by 3 cases
- Muhsin Islam & salih Islam vs the State & others 2017 PHC 567
- MUHSIN ISLAM and another vs The STATE and 2 others 2018 MLD 428
- MALIK and another vs The STATE 2018 YLR 738