SARFRAZ and 2 others vs The STATE and another
This is a criminal petition under Section 497 of the Code of Criminal Procedure 1898 seeking post-arrest bail for three petitioners in a case involving murder and other offences. The core legal questions relate to whether the petitioners are entitled to bail on the grounds of further inquiry, particularly considering the attribution of specific injuries and the applicability of vicarious liability. The Lahore High Court held that two petitioners, to whom no fatal injuries were attributed and whose vicarious liability required trial evaluation, were entitled to bail under Section 497(2) of the Code of Criminal Procedure 1898 due to the statutory delay in trial and lack of necessity for further incarceration. However, the court dismissed the bail petition of the third petitioner, who was specifically named in the First Information Report with a fatal injury corroborated by medical evidence and whose alleged offence fell within the prohibitory clause. The key principle laid down is that tentative assessment governs bail stages where vicarious liability requires evidence and prolonged incarceration without trial progress warrants relief under the rule of further inquiry.
- Whether an accused to whom no fatal injury is attributed and whose vicarious liability is to be determined at trial is entitled to post-arrest bail on the ground of further inquiry?
- Does prolonged incarceration without fruitful progress in the conclusion of a trial justify the grant of bail under Section 497(2) of the Code of Criminal Procedure 1898?
- Whether an accused named in the First Information Report with a specific incriminating role falling within the prohibitory clause is entitled to post-arrest bail?
- Section 497, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
- Section 161, Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 337-A(i), Pakistan Penal Code 1860
- Section 337-A(ii), Pakistan Penal Code 1860
- Section 337-F(i), Pakistan Penal Code 1860
- Section 337-L(2), Pakistan Penal Code 1860
- Section 447, Pakistan Penal Code 1860
- Section 511, Pakistan Penal Code 1860
- Section 337-H(2), Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
ORDER
ABDUL SAMI KHAN, J.---Through this petition under section 497, Cr.P.C. Sarfraz, Ehsan Ullah and Mohsin Kamal petitioners have sought post-arrest bail in case FIR No, 304/17, dated 01.07.2017, under sections 302, 324, 337-A(i), 337-A(ii), 337-F(i), 337-L(2), 447/511, 337-H(2), 148, 149, P.P.C., Police Station Bhowana, District Chiniot.
2. I have heard the learned counsel for the parties and have gone through the record with their able assistance. This is bail after arrest and only tentative assessment is required at this stage. It has been noticed by this Court that there are certain distinctions between the case of Sarfraz and Ehsan Ullah petitioners and Mohsin Kamal petitioner, therefore, firstly I would like to decide the case to the extent of Sarfraz and Ehsan Ullah petitioners. Although Sarfraz and Ehsan Ullah petitioners are named in FIR yet the fact remains that no injury is attributed to them on the person of Malik Khan deceased and they have been assigned the role of causing injuries on the heads of Mst.Azra Bibi and Mst. Kalsoom Bibi, falling under section 337-A(ii), P.P.C. It is settled law that the questions in respect of vicarious liability of Sarfraz and Ehsan Ullah petitioners as well as sharing of common intention by them with their co-accused for committing murder of Malik Khan deceased shall be determined by learned trial court after recording evidence. Reliance can be placed on the case of "Mumtaz Hussain v. The State" (1996 SCM R 1125). Admittedly Sarfraz and Ehsan Ullah petitioners are previous non-convict; investigation of the case is complete and they are no more required for further investigation. They are behind the bars since 01.07.2016, that too without any fruitful progress in conclusion of their trial, therefore, their further incarceration in jail would not serve any useful purpose as nobody can be kept in jail for indefinite period.
3. For what has been discussed above, the case of Sarfraz and Ehsan Ullah petitioners has become one of further inquiry covered by subsection (2) of section 497, Cr.P.C. Hence, this petition is allowed to the extent of Sarfraz and Ehsan Ullah petitioners and they are granted bail after arrest on the ground of further inquiry subject to furnishing bail bonds in the sum of Rs,200,000/- (Rupees two hundred thousand only) each with two sureties each in the like amount to the satisfaction of the learned trial court.
4. Adverting to the case of Mohsin Kamal petitioner, it has been noticed by this Court that he is named in FIR with specific allegation of causing hatchet blow on left arm of Malik Khan deceased.
The role assigned to Mohsin Kamal petitioner in FIR is borne out from the postmortem report of the deceased. There is sufficient incriminating material against the petitioner on the file of this case as the PWs still stand by their statements recorded under section 161, Cr.P.C. which prima facie connect him with this case. The offences with which he has been charged fall under the prohibitory clause of section 497 Cr.P.C. Challan has already been submitted in the learned trial court, wherein the trial of the petitioner has commenced.
5. For what has been discussed above, this petition to the extent of Mohsin Kamal petitioner does not bear any force and substance and to his extent, the same is hereby dismissed.
6. Before parting with this order, it is made clear that the observations made above are purely tentative in nature and are strictly confined to the decision of these bail petitions only.