Shahzad and 2 others vs State and another
This matter concerns a petition for pre-arrest bail filed by three accused persons in a murder case registered under Sections 302 and 34 of the Pakistan Penal Code 1860. The petition was dismissed regarding Petitioner No. 3 at the outset. For Petitioners No. 1 and 2, the core legal question was whether they were entitled to pre-arrest bail given the specific allegations of holding the deceased while co-accused inflicted fatal blows. The Court held that the petitioners were entitled to pre-arrest bail, confirming their ad-interim bail. The Court reasoned that the allegation of holding the deceased was difficult to verify, as no physical evidence of such restraint existed on the body of the deceased. Furthermore, the Court observed that the petitioners appeared to have been implicated due to a wider net being cast over the family, and there was no nexus established between the petitioners and the alleged motive. The Court affirmed that while mala fide must be shown for pre-arrest bail, it can be deduced from the facts and circumstances of the case where direct evidence is unavailable.
- Can pre-arrest bail be granted when the specific role attributed to the accused is difficult to corroborate with physical evidence?
- Is it permissible to infer mala fide in a pre-arrest bail application based on the facts and circumstances of the case?
- Does the lack of a nexus between the accused and the alleged motive support a grant of pre-arrest bail?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
At the very out-set, learned counsel for the petitioners has drawn this petition to the extent of Petitioner No. 3 namely Amanullah S/o Nazar Muhammad, therefore, to his extent, this petition is dismissed .
2. The petitioners No. 1 and 2 namely Shahzad and Sohail both sons of Saifullah, seek their pre-arrest bail in case FIR No. 96 of 2019 dated 9.4.2019 regis tered at police station Bait Mir Hazar , District Muzaf fargarh in respect of offences under Sections 302 and 34, PPC.
3. The allegation against the petitioners' No. 1 and 2 is that they held the deceased in their grasp whereas, co- accused of the petitioners No. 1 and 2 gave blows on the head of deceased, causing his death.
4. I have heard the arguments of the learned counsel for the petitioners, learned Deputy Prosecutor General for the State assisted by learned counsel for the complainant and with their able assistance, have perused the record.
5. As is evident from the perusal of the FIR, the role attributed to the petitioners No. 1 and 2 namely Shahzad and Sohail is that they held the deceased in their grasp. Such allegation is easy to level but very hard to prove. The deceased had suffered no other injuries but those which were attributed to the co-accused named in the FIR-There was no such mark of violence on his body so as to prove that he was held in grasp by the petitioners No. 1 and 2 namely Shahzad and Sohail. Both the petitioners No. 1 and 2 namely Shahzad and Sohail are real brothers inter- se and nephews of the co-accused namely Amanullah and cousin of the other co-accused namely Shan. Hence, in this situation, it can be said that wider net has been thrown so as to include all the male members of the family in the occurrence. Nothing is to be recovered from the possession of petitioners No. 1 and 2 namely Shahzad and Sohail. The investigation of the case is complete and the version of the petitioner as well as the complainant and his witnesses has already been verified by the Investigating Officer. The occurrenc e seems to be sudden in nature and the vicarious liability of the petitioners' No. 1 and 2 namely Shahzad and Sohail shall be best adjudged by the learned trial Court after recording of evidence. The contention of learned counsel for the petitioners that the petitioners No. 1 and 2 namely Shahzad and Sohail have been involved in the occurrence due to mala fide and ulterior motive cannot be rejected outright. The petitioners No. 1 and 2 had no nexus with the alleged motive of the occurrence and there is no evidence with respect to the fact that they were attributed the motive of occurrence in any manner . Reliance is placed on the case of Khalil Ahmad Soomro and others v. The State (PLD 2017 SC 730) wherein the following has been enunciated: "Although for grant of pre-arrest bail one of the pre-conditions is that the accused person has to show that his arrest is intended by the prosecution out of mala fide and for ulterior consideratio n. At pre-arrest bail stage, it is difficult to prove the element of mala fide by the accused through positive/solid evidence/materials and the same is to be deduced and inferred from the facts and circumstances of the case and if some events hints to that effect are available, the same would validly constitute the element of mala fide ."
6. In view of this, this petition is allowed and the ad-interim pre-arrest bail already granted to the petitioners No. 1 and 2 namely Shahzad and Sohail, by this Court vide order dated 17.06.2019 is hereby confirmed subject to their furnishing fresh bail bonds in the sum of Rs. 2,00,000/- (Rupees two lac) each with two sureties each in the like amount to the satisfaction of learned trial Court.
7. Needless to observe that the observations made hereinabove are mere tentative in nature and shall not influence the learned trial Court, in any manner .