Shad Nabi vs The State
The accused-petitioner sought post-arrest bail in case FIR No. 198 dated 15.07.2016 under Sections 302/34 of the Pakistan Penal Code 1860, registered at Police Station Jarma, District Kohat, involving allegations of firing and murdering the complainant's brother. The core legal question was whether the petitioner was entitled to bail on grounds of further inquiry, considering the acquittal of a co-accused with a similar role and alleged discrepancies in the medical and ocular evidence. The Peshawar High Court held that the petitioner was directly nominated in the FIR, supported by forensic science laboratory reports indicating multiple weapons used, and that his case was distinguishable from the acquitted co-accused because the petitioner had absconded during the trial. Consequently, the court dismissed the bail petition, ruling that the petitioner was prima facie connected to an offense falling within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898. The key principle laid down is that an absconding accused cannot claim parity for bail purposes with a co-accused who faced trial and was acquitted.
- Whether an accused who absconded during trial can claim the benefit of parity for bail based on the acquittal of a co-accused with a similar role?
- Does direct nomination in an FIR coupled with corroborative forensic evidence attract the prohibitory limb of Section 497 of the Code of Criminal Procedure 1898?
- Is a tentative assessment of the material sufficient at the bail stage to establish a prima facie connection of the accused with the crime?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
QAISER RASHID KHAN, CJ:- Accused-petitioner seeks his release on bail in case FIR No.198, dated 15.07.2016, under Sections 302/34 PPC of Police Station Jarma, District Kohat, with the allegations that he along with his co- accused had fired at Lal Muhammad, brother of the complainant with which he was hit and died on the spot.
2. All that the learned counsel for the accused petitioner contends is that the latter has been falsely roped in the instant case as no motive has been advanced against him in the FIR; that the medical evidence does not support the prosecution version; that the site plan rules out the presence of the accused-petitioner on the spot; that the co- accused Zahirullah with a similar role of firing has been acquitted by the learned trial court and such circumstances, take his case to one of further inquiry entitling him to the concession of bail.
3. The complainant present in court expressed his inability to engage a counsel. As such, the learned AAG advanced his arguments resisting the bail petition. He contended that the accused-petitioner along with his co- accused have been directly nominated by the complainant for the commission of the offence and as such, he is not entitled to the concession of bail.
4. Arguments heard and the available record perused.
5. As per the FIR ibid, it was the complainant Naimat Khan, who accompanied by the dead body of his brother namely Lal Muhammad reported at the police station about the incident as to how while he along with his deceased brother and uncle Muslim Khan were proceeding from their house to Bazar with his brother Lal Muhammad ahead of them, when they came across the accused-petitioner along with his co-accused namely Umar Nawaz and Zahirullah duly armed with their respective firearms, who suddenly started firing at Lal Muhammad with their respective firearms with which he was hit and died on the spot.
6. From the spot 30 empties of 7.62 bore were retrieved which as per the FSL report have been fired from different weapons. Given the fact that the accused-petitioner along with his co-accused have been directly nominated by the complainant for firing at his deceased brother with their respective firearms with which he sustained multiple firearm injuries and died on the spot, coupled with the FSL report pointing towards the involvement of more than one accused in the commission of the offence, then in such event, the accused-petitioner is prima facie connected with the commission of the of fence attracting the prohibitory limb of section 497 Cr .P.C.
7. The argument of the learned counsel for the accused-petitioner that the co-accused Zahirulah with a similar role of firing at the deceased has been acquitted by the learned trial court carries little weight. While co-accused Zahirulah faced trial, the accused-petitioner preferred to abscond and surrendered barely a month after the acquittal of his co-accused. Moreover , the other co-accused Umar Nawaz is still fugitive from law .
8. Thus taking a tentative assessment of the material available on record, the accused-petitioner is prima facie connected with the commission of the offence attracting the prohibitory limb of section 497 Cr.P.C. Hence, I hold him disentitled to the concession of bail.
9. Resultantly , this bail petition stands dismissed.