Mst. ZAHIDA TARIQ Versus State
This matter concerns a petition for pre-arrest bail filed by two individuals, Zahida Tariq and Rehan Tariq, in a case registered under Sections 302, 34, and 109 of the Pakistan Penal Code 1860. The core legal question was whether the petitioners were entitled to pre-arrest bail given the allegations of their involvement in a murder case where the primary firearm injury was attributed to a co-accused. The Court observed that the deceased sustained only a single firearm injury, attributed solely to the co-accused, and that the allegations of grappling were contradicted by the postmortem report. Furthermore, the Court noted that the second petitioner was a minor at the time of the incident and that no specific overt act was attributed to him. Holding that the petitioners' vicarious liability and common intention required further inquiry, the Court confirmed the pre-arrest bail. The judgment reinforces the principle that where allegations appear exaggerated or mala fide, and where the case requires further probe under Section 497(2) of the Code of Criminal Procedure 1898, bail should be granted.
- Does the presence of a single firearm injury attributed to a co-accused warrant further inquiry into the vicarious liability of other accused persons under Section 497(2) of the Code of Criminal Procedure 1898?
- Can pre-arrest bail be granted when allegations of physical grappling are contradicted by the medical evidence in a postmortem report?
- Is the age of an accused relevant to the determination of pre-arrest bail in a murder case?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER
FAROOQ HAIDER, J.--- Mst. Zahida Tariq and Rehan Tariq petitioners seek pre-arrest bail in case arising out of FIR No. 1161 dated 12.11.2018 registered under sections 302, 34 and 109, P.P.C., at Police Station Manawan, District Lahore.
2. Arguments heard and record perused with the able assistance of learned counsel for the petitioners, learned counsel for the complainant and learned Law Officer.
3. It has been noticed that it is a single firearm shot case, which resulted Injury No. 1A (entry wound) and Injury No. 1 B (exit wound) at the corpus of deceased (as per his postmortem examination report); said firearm shot is attributed to Zeeshan co-accused of the petitioners; no other injury of any nature has been found on the body of deceased during postmortem examination. Zahida Tariq (petitioner No. 1), while empty handed has allegedly raised lalkara to co-accused Zeeshan Tariq, who with pistol had already come at the place of occurrence, prior to the arrival of Zahida Tariq there; in said situation, the question that whether lalkara of Zahida Tariq was necessarily required by Zeeshan Tariq for making firearm shot, requires further inquiry within the meaning of section 497(2), Cr.P.C. As far as case of Rehan Tariq (petitioner No.2) is concerned, his age (as per copy of birth certificate appended at page 22 of the petition as Annexure-E) was about 12 years at the time of occurrence, learned counsel for the petitioner has also shown his original birth certificate, during arguments; said fact has also been confirmed by the learned Deputy Prosecutor General for the State, who after going through the record submitted that Investigating Officer has also mentioned age of Rehan Tariq as 12/13 years. As per FIR, Rehan Tariq was empty handed, although allegedly present at the place of occurrence, yet no specific overt act has been alleged against him.
As far as, general allegation against all accused persons mentioned in the FIR qua grappling with deceased and beating him is concerned, same has been falsified by the postmortem report because no such injury has been found on the dead body of deceased during postmortem examination. It has been mentioned in the FIR that occurrence has allegedly taken place at front of house of complainant in the street, whereas house of complainant is near to the house of accused, relevant portion is being reproduced:-
Therefore, questions regarding alleged presence of Zahida Tariq and Rehan Tariq at the place of occurrence, sharing any common intention and their vicarious liability require further probe within the meaning of section 497(2), Cr. P. C. In aforementioned circumstances, exaggeration on the part of complainant by joining hands with police, widening net and roping Zahida Tariq (being mother) and Rehan Tariq (being brother) of Zeeshan Tariq in the case, with "mala fide intention", cannot outrightly be ruled out. Both petitioners have already joined the investigation. Investigating police officer, present in the Court, has categorically stated that nothing is to be recovered from the petitioners.
4. Resultantly, instant application for pre-arrest bail is allowed, ad-interim pre-arrest bail already granted to the petitioners is confirmed subject to their furnishing fresh bail bonds in the sum of Rs.2,00,000/- (two lacs) each with one surety each in the like amount to the satisfaction of learned Trial Court within 15 days. However, it is clarified that the observations mentioned above are only tentative in nature and strictly confined to the disposal of instant petition for bail.
SA/Z-10/L Bail allowed.