Mst. Fozia vs The State
This matter concerns a criminal bail application filed by the applicant, Mst. Fozia, seeking confirmation of pre-arrest bail in a case involving allegations of murder committed by an unlawful assembly. The core legal question was whether the applicant, who was attributed only the role of instigation in the FIR, was entitled to pre-arrest bail despite allegations of vicarious liability. The Court held that the applicant was entitled to the relief sought. The ratio of the decision rests on the fact that the FIR was lodged with a one-day delay, the applicant's specific role was limited to instigation, and the parties had a pre-existing dispute, rendering the issue of vicarious liability a matter for trial determination. Furthermore, the Court distinguished the prosecution's cited precedent by noting the absence of absconsion in the present case. The key principle laid down is that where the role attributed is merely instigation and there is no evidence of absconsion, pre-arrest bail may be confirmed on the grounds of mala fide, leaving the determination of vicarious liability to be resolved during the trial proceedings.
- Is an accused entitled to pre-arrest bail when the role attributed in the FIR is limited to instigation?
- Does the existence of a prior dispute between parties justify the grant of pre-arrest bail?
- Can a court confirm pre-arrest bail when the issue of vicarious liability requires determination at trial?
- Section 498-A, Code of Criminal Procedure 1898
ORDER
1. IRSHAD ALI SHAH - J;- It is alleged that the applicant with rest of the culprits, after having formed an unlawful assembly and in prosecution of their common object, by committing trespass into house of complainant Imtiaz Ali, committed murder of his sister Mst. Afroz Khatoon, by causing her fire shot injurie s, for that the present case was registered.
2. The applicant on having been refused pre-arrest bail by learned 1st Additional Sessions Judge, Larkana, has sought for the same from this Court by way of instant application under section 498-A Cr.PC.
3. It is contended by learned counsel for the applicant that the applicant being innocent has been involved in this case falsely by the complainant party in order to satisfy its previous dispute with her; the FIR of the incident has been lodged with delay of about one day; no active role in commission of the incident is attributed to the applicant and co-accused Nazir Ahmed and Bashir Ahmed have already been admitted to bail by learned trial Court; therefore, the applicant being lady is entitled to grant of pre-arrest bail, as she is apprehend ing her unjustified arrest at the hands of police. In support of his contention, he relied upon case of Arbab Ali Lolai Vs. The State (2020 P.Cr.LJ Note-65).
4. Learned Additional Prosecutor General for the State and learned counsel for the complainant have opposed to grant of pre-arrest bail to the applicant by contending that she is vicariously liable for commission of incident. In support of their contention, they have relied upon case of Karim Bux Vs. The State ( 2000 SCMR-1405 ).
5. I have considered the above arguments and perused the record.
6. The FIR of the incident has been lodged with delay of about one day and the role attributed to the applicant in commission of the incident is only to the extent of instigation; the parties are alread y disputed. In that situation, the participation of the applicant in commissi on of the incident on point of vicarious liability obviously is calling for its determination at trial. In these circumstances, the applicant is found entitled to grant of pre-arrest bail on point of malafide.
7. The case law which is relied upon by learned Addl.P .G for the State and learned counsel for the complainant is on distinguishable facts and circumstances. In that case, the accused after rejection of his pre-arrest bail preferred to remain in absconsion for more than five months. In the instant matter , there is no absconsion on the part of applicant.
8. In view of above, the interim pre-arrest bail already granted to the applicant is confirmed on same terms and conditions.
9. The instant criminal bail application is disposed of accordingly .