Mumtaz Ali vs The State
This bail application arises from a criminal case registered under sections 302, 504, and 34 of the Pakistan Penal Code 1860, concerning the murder of Muhammad Moosa. The applicant, Mumtaz Ali Solangi, sought post-arrest bail after the Additional Sessions Judge-I, Tando Adam, declined his initial plea. The core legal question was whether the applicant, who was present at the scene but not assigned any specific overt act or weapon in the FIR, was entitled to bail pending trial. The court observed that the fatal firearm injury was attributed solely to the co-accused, Atta Muhammad, and that the prosecution could not establish that the applicant played an active role or was armed during the incident. Holding that the question of vicarious liability requires the recording of evidence, the court determined that the applicant's case fell within the scope of further inquiry. Consequently, the court granted post-arrest bail, establishing the principle that where no specific overt act is attributed to an accused in an FIR, their case warrants further inquiry under the Code of Criminal Procedure 1898.
- Does the absence of a specific overt act attributed to an accused in an FIR entitle them to post-arrest bail?
- Can the question of vicarious liability be determined at the bail stage without recording evidence?
- Does a case fall within the ambit of further inquiry under section 497(2) of the Code of Criminal Procedure 1898 when the accused is merely present at the scene of the crime?
- Section 302, Pakistan Penal Code 1860
- Section 504, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
ABDUL MAALIK GADDI, J.---Through this application, Applicant Mumtaz Ali Solangi seeks his admission on post- arrest bail in Crime No.15 of 2019, registe red at Police Station Jam Nawaz Ali, under sections 302, 504, 34, P.P.C.
Earlier the plea of post-arrest bail preferred on behalf of the applicant was declined by the learned Additional Sessions Judge-I, Tando Adam by means of order dated 18.10.2019, hence this bail application.
2. As per prosecution case, there is matrimonial dispute between the parties. The allegation against the present applicant, is that on fateful day viz 29.04 .2019 at 0545 hours, he along with co-accused by riding a motorcycle came at the house of complainant party and while abusing them co-accused Atta Muhammad, who was armed with a pistol, made straight fire from, said weapon at Muhammad Moosa which hit him at left side of his abdomen and as a result thereof he succumbed in the way to hospital. Therefore, said FIR was lodged.
3. Learned counsel for the Applicant contended that Applicant is innocent and has falsely been implicated in this case by the complainant with mala fide intention and ulterior motive; that no specific role has been assigned to Applicant; that the prosecution story is fabricated, concocted and managed one; that as per FIR, the active role in commission of alleged offence is assigned to co-accused Atta Muhammad whereas only presence of present Applicant at the scene is shown; however , without any active or specific role; therefore, case of Applicant requires further inquiry . In support of his contention, learned counsel for the Applicant placed reliance on the cases of Zoor Zameen Gul and another v. The State (2019 PCr.LJ Note 66), Sher Muhammad alias Shero v. The State (2019 MLD 1250 ) and Zaigham Ashraf v . The State and others ( 2016 SCMR 18 ).
4. Learned A.P.G duly assisted by learned counsel for the complainant, while opposing the bail plea submits that Applicant along with co-accused Atta Muhammad and Faiz Muhammad came at the vardat and committed murder of deceased Muhammad Moosa; that Applicant has played active role in commission of offence, therefore, he is not entitled for any concession at this stage.
5. Heard learned counsel for the parties and perused the record available before me. It is an admitted fact that there is a dispute in between the parties over matrimonial affairs. No doubt, name of the applicant is appearing in the FIR with allegation that he along with co-accused Atta Muhammad and Faiz Muhammad while riding a motorcycle came at the vardat where Atta Muhammad by causing firearm injuries to Muhammad Moosa committed his murder , whereas no overt act has been assigned to present applicant. According to the FIR, applicant has merely accompanied with co-accused Atta Muhammad who fired from his pistol and caused fatal injury to deceased Muhammad Moosa. During the course of arguments, I have specifically asked the question from learned APG and learned counsel for complainan t whether at the time of incident, present Applicant was armed with any weapon or had played any active role in commission of alleged of fence, they replied in negative.
6. As per police papers, it appears that the allegation of causing fire arm injury to deceased is co-against accused Atta Muhammad who, as per learned A.P.G, is confined in jail. As per FIR, present Applicant at the time of commission of alleged of fence, has not played any active role.
7. As far as, the question of vicarious liability is concerned, same can be established only after recording of evidence.
8. In view of above, case of the Applicant falls within the ambit of further inquiry as envisaged under subsection (2) of section 497, Cr.P.C. (further inquiry). Under these circumstances, I am inclined to grant bail to applicant.
Accordingly , applicant is granted bail in the aforementioned crime upon furnishing his solvent surety in the sum of Rs.1,00,000/- (Rupees one hundred thousand) and PR bond in the like amount to the satisfaction of the trial Court.
9. Needless to mention here that the observation made in this order is tentative in nature and shall not affect the merits of the case. It is made clear that in case if during proceeding the applicant misuses such concession of bail, then trial Court would be competent to cancel the same without any notice. However , the Court is directed to proceed with the matter expeditiously and decide the same preferably within a period of 03 months after receipt of this Order . No unnecessary adjournment shall be granted to either side. Compliance report be submitted to this Court through Additional Registrar .