Tasawar Mehmood vs The State and another
This petition concerns a request for post-arrest bail under Section 497 of the Code of Criminal Procedure 1898 in a case involving charges under Sections 302 and 34 of the Pakistan Penal Code 1860. The core legal question was whether the petitioner, who was found innocent by the investigating officer and whose involvement was based on general allegations of shared common intention without specific injury attribution, was entitled to bail. The Court held that the case against the petitioner constituted a matter of 'further inquiry' under Section 497(2) of the Code of Criminal Procedure 1898, as the prosecution presented two conflicting versions of events—one from the complainant and one from the investigation. The Court emphasized that vicarious liability and common intention are matters for the trial court to determine after recording evidence. Furthermore, the Court established that the heinousness of an offense or mere absconsion does not automatically preclude bail if the accused is otherwise entitled to it, particularly when the investigation is complete and the accused is a previous non-convict.
- Does a finding of innocence by the investigating officer render a case one of further inquiry for the purpose of bail?
- Can bail be refused solely on the grounds of the heinous nature of the alleged offense?
- Is the determination of vicarious liability and common intention a matter to be decided at the bail stage or during the trial?
- Does the existence of two conflicting versions of the prosecution's case entitle an accused to the grant of bail?
- Section 497, Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
Through this petition under section 497 Cr.P.C. Tasawar Mehmood, the petitioner has sought post-arrest bail in cross version of case FIR No.144/201 1 Rapt No. 25 dated 10.10.201 1 under sections 302, 34 PPC, registered at Police Station Domeli, District Jhelum.
2. The arguments advanced by learned counsel for the parties have been heard and record of this case has also been perused with their able assis tance. This is bail after arrest and deeper appreciation is not allowed at this stage. It has been noticed that the petitioner is named in FIR with the name of son-in-law of Muhammad Rafique but his name came on record through supplementary statement dated 09.07.2015 after his arrest. No specific injury is attributed to the petitioner and the allegation against the petitioner is that he alongwith co-accused inflicted injuries to Muhammad Balouch deceased with spade, Danda and Sota. It is settled law that vicarious liability of the accused or sharing common intention by him with his co-accused for committing murder of the deceased shall be determined by the learned trial Court after recording evidence. In this respect, reliance can be placed on "Mumtaz Hussain and 5 others vs The State" 1996 SCMR 1125. During investigation the petitioner was found innocent by the Investigating officer. Although, opinion of the police is not binding on the Courts of law, yet the same can be taken into consideration, if supported by surroundings facts and circumstances of the case. Keeping the contents of FIR in juxtaposition to the outcome of investigation, prima facie the case of the prosecution against the petitioner has become the case of two versions i.e. one put forward by the complainant and the other came on record during investigation and which version is correct shall be determined by the learned trial court after recording evidence. Reliance can easily be placed upon 2012 SCMR 1137 (Ehsan Ullah vs. The State) wherein it has been held by the Hon'ble Supreme Court of Pakistan as under:- "This shows that in the present case the prosecution itself has two versions vis--vis the petitioner , first of the complainant party according to which the petitioner was present at the spot and had resorted to firing and second of the investigating agency according to which the petitioner was not present at the spot and he was abetting his co-accused form behind the scene. All these considerations surely render the case against the petitioner one of further inquiry into his guilt."
Admittedly , the petitioner is previous non-convict. He is behind the bars since 25.03.2015 without any fruitful progress in his trial. Investigation of the case is complete and the petitioner is no more required for further investigation. Nobody could be kept in jail for an indefinite period. His further incarceration in jail would not serve any useful purpose. Mere absconsion is no ground to refuse bail to an accused if otherwise the accused becomes entitled to the grant of bail. Reliance can be placed on case titled as "Mitho Pitafi vs The State" 2009 SCMR 299. Mere heinousness of offence is also no ground to refuse bail to the accused, who other becomes entitled for this concession.
3. For what has been discussed above, the case of the petitioner becomes one of further inquiry covered by sub- section (2) of section 497 Cr.P.C. This petitio n is, therefore, allowed and the petitioner is granted bail after arrest subject to his furnishing bail bonds in the sum of Rs.2,00,000/- (Rupees two hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned trial court.
4. The observations made above are tentative in nature and are strictly confined to the decision of this bail petition only.