IRSHAD AHMAD KHAN vs SHAFIQ KHAN AND 2 Other
This matter arises from a petition seeking the cancellation of bail granted to the respondents by the Lahore High Court in a murder case registered under the Pakistan Penal Code. The core legal question concerns whether the High Court improperly exercised its discretion in granting bail to the respondents by distinguishing their roles from those of other co-accused, and whether they shared a common object under Section 149 of the Pakistan Penal Code. The Supreme Court of Pakistan held that the High Court did not exercise its discretion improperly in distinguishing the case of the respondents from the co-accused who allegedly fired the fatal shots. Regarding the allegation that the respondents abused the privilege of bail by threatening prosecution witnesses, the Court held that such grounds should first be brought before the High Court. The petition was accordingly dismissed, with the observation that the complainant could approach the High Court on the fresh ground of abuse of bail.
- Whether bail granted by the High Court can be cancelled by the Supreme Court without approaching the High Court first on new grounds?
- Does firing in the air without hitting the deceased warrant a distinction in bail matters from co-accused who fired fatal shots?
- Can allegations of threatening prosecution witnesses be raised for the first time before the Supreme Court in a bail cancellation matter?
- Section 149, Pakistan Penal Code
ORDER
1. ANWARUL HAQ, C.J-This petition seeks cancellation of bail allowed to the respondents, Shafiq Khan and Faryad Khan by a learned Judge of the Lahore High Court in a murder case by his order dated the 12th of February, 1976.
2. In the First Information Report registered on the 22nd of September1975 five accused persons, viz. Rafiq Khan, Shafiq Khan, Faryad Khan, Ashraf Khan and Ishfaq Khan were named as having attacked and killed Mumtaz Khan deceased. A lalkara was attributed to Rafiq Khan, whereas the respondents Shafiq Khan and Faryad Khan were said to have fired in the air. Ashraf Khan had aimed his gun at the deceased, but his shot had missed, and the deceased was hit only by a shot fired by Ishfaq Khan. In the circumstances, bail was allowed to Rafiq Khan by the Sessions Judge, mainly on medical grounds on 5-11-1975 and bail has now been allowed to Shafiq Khan and Faryad Khan by the High Court on the ground that their case was clearly distinguishable from that of Ashraf Khan and Ishfaq Khan.
3. It is submitted on behalf of the petitioner that the learned Judge in the High Court has completely overlooked the provisions of section 149 of the Pakistan Penal Code, according to which the two respondents were also equally liable for the acts of Ashraf Khan and Ishfaq Khan co-accused as they all shared the common object of murdering Mukhtar Khan deceased. It is next submitted that in any case the two respondents have been threaten--ing the prosecution witnesses, and thus abusing the privilege of bail granted to them by the High Court.
4. On behalf of the respondents, Mr. Aftab Farrukh denies the allegation that the respondents have in any manner attempted to interfere with the prosecution witnesses, and submits that the report said to have been made by Mohammad Nawaz at the police station concerned on the 7th -of July 1977 is factually incorrect.
5. We find that on the allegations made in the First Information Report, the High Court does not appear to have exercised its discretion improperly in distinguishing the case of the respondents from that of the co-accused Ashraf Khan and Ishfaq Khan. We also find that the allegation that the respondents have been abusing the concession of bail granted to them by the High Court should have been brought to the notice of that Court in the firs instance, but the same has not been done so far. In the circumstances, we are not satisfied that any justification is made out for our interference in the matter. The petition is, therefore, dismissed. The complainant may, however, move the High Court, if so advised, on the fresh ground stated before us, namely, that the respondents are abusing the privilege of bail.
Cited by 1 case
- MUHAMMAD BUX vs THE STATE 1989 P Cr. L J 193