SHERIN vs STATE and another
This matter concerns a petition for post-arrest bail filed by the accused, Sherin, who was charged under Sections 302, 324, 148, and 149 of the Pakistan Penal Code 1860 in connection with a murder case. The petitioner sought bail after his initial application was rejected by the Additional Sessions Judge. The core legal question was whether the petitioner, who was attributed an ineffective role of firing at the complainant, was entitled to bail despite allegations of common intention and a history of abscondence. The Court held that the petitioner's case fell within the scope of 'further inquiry' under Section 497(2) of the Code of Criminal Procedure 1898, as the determination of his specific role and common intention required the recording of evidence. Furthermore, the Court established the principle that abscondence does not operate as a bar to the grant of bail when the case otherwise falls within the ambit of Section 497(2) of the Code of Criminal Procedure 1898. Consequently, the Court accepted the bail application, subject to the furnishing of bail bonds.
- Does an allegation of ineffective firing in furtherance of a common object warrant further inquiry for the purpose of bail?
- Can bail be granted to an accused person who has absconded if the case otherwise falls within the scope of further inquiry?
- Is the attribution of an ineffective role of firing sufficient to deny bail under Section 497 of the Code of Criminal Procedure 1898?
- Section 497, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
1. ' Sher in son of Hussain Khan invokes the jurisdiction of this Court under Section 497 of Criminal Procedure for his enlargement on bail in case registered at Police Staten Tajori (Lakki Marwat) under Sections 302/324/148/149, PPC vide F.I.R No, 166 dated 26/5/2010.
2. 2.Petitioner's prayer for his release on bail was turned down by Learned Additional Sessions Judge- 1I, Lakki Marwat through order dated 20/10/2016.
3. 3.Facts of the case are that complainant Masood-ur-Rehman brought the dead body of his uncle Lal Shah to Police Station. Reported the matter to the effect that on the eventful day at 6:45 a.m. he alongwith deceased Lal Shah were proceeding to Tajori. Deceased was ahead of him, they spotted accused/petitioner Sharin alongwith five others who were duly equipped with Kalashnikwis except co-accused Hasham in compliance of whose command, co-accused Zarkeem Khan fired at deceased, as a result of which' he was hit and died on the spot, while petitioner with others fired at complainant ineffectively.
4. 4.I have heard learned counsel for petitioner as well as Additional Advocate General on behalf of State and have scanned the record through their valuable assistance.
5. 5.Admittedly petitioner is charged for ineffective firing at complainant in furtherance of common object. Question of complicity of petitioner qua his acting in furtherance of common object with rest of his co-accused requires recording of evidence, but till then refusal of bail in view ofthe peculiar facts and circumstances of the case would not be a step justified in law.
6. 6.Cases wherein ineffective role of firing.is attributed, falls within the scope of further inquiry due to the reason that question as to whether accused intentionally fired at the complainant or deceased, in furtherance of common object/common intention but was unsuccessful to hit or the case has been padded by attributing ineffective firing by the opposite-party, could be answered after recording of ' evidence: Reliance can be placed on cases titled "Muhammad vs The state (1998 SCM R .454), "Haji Muhammad Banaras vs. Muhammad Ayaz and others, (2000 SCM R 1360) and "Rab Nawaz vs. The state" (1990 SCM R 1085).
7. 7.Bail was refused to the petitioner mainly on the ground of abscondence when otherwise case comes within the ambit of Section 497(2), Cr.P.C., then abscondence would not be a bar for grant of bail. In this reliance can be placed on cases titled "The State vs Malik Mukhtar Ahmad Awan"
8. (1991 SCM R 322) and "Mito Pitaf vs The State" (2009 SCM R 299).
9. 8.In such view of the present case, petitioner deserves to be released on bail for the afore-stated reasons. This bail application is accepted and the accused/petitioner is released on bail provided he furnishes bail bond in sum of Rs, 1,00,000/- (rupees One lac) with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate.
10. 9.These are the detail reasons of my short order of even date.
11. 10.The observations made in this order are tentative in nature and shall not prejudice the mind of the trial Court at the time of trial of the case who shall decide the case on merits and strictly in accordingly with law.