FAIZ MUHAMMAD Versus State
This matter arises from a bail application filed by the applicant, Faiz Muhammad, seeking post-arrest bail in crime No. 42 of 2002 registered at Police Station A-Section Kandhkot under sections 302, 337-H(ii), 148, 149 and 504 of the Pakistan Penal Code 1860. The core legal question concerns whether the applicant is entitled to bail where active firing is attributed to co-accused and the role assigned to the applicant falls within the scope of further inquiry regarding vicarious liability and common intention. The Sindh High Court held that since the F.I.R. does not attribute any firing on the deceased or witnesses to the applicant, the case against him warrants further inquiry under section 497(2) of the Code of Criminal Procedure 1898, particularly considering the delayed trial and admitted enmity. The court allowed the bail application, laying down the principle that the determination of vicarious liability and the sharing of common intention at a tentative assessment stage can constitute grounds for further inquiry warranting the grant of post-arrest bail.
- Whether an accused to whom no firing is attributed on the deceased is entitled to post-arrest bail when the case involves determination of vicarious liability?
- Does an inordinate delay in the recording of evidence during trial constitute a ground for granting bail under the category of further inquiry?
- Whether the question of sharing a common intention can be conclusively determined at the bail stage without recording evidence?
- Section 302, Pakistan Penal Code 1860
- Section 337-H(ii), Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 504, Pakistan Penal Code 1860
ORDER
1. SYED SHAFQAT ALI SHAH MASOOMI, J.--- Through this application, the applicant seeks bail in crime No. 42 of 2002, Police Station A-Section Kandhkot, for offences under sections 302, 337-H(ii), 148, 149 & 504, P.P.C.
2. The allegation against applicant is that on 21-3-2002, at about 1840 hours, complainant Akbar Ali Malik lodged report, alleging therein that he was residing with his father, namely, Sajan and his uncles, Nazir Ahmed and Haji Aziz Ahmed in Daya Muhalla Kandhkot. There was dispute between the complainant and accused party over landed property. On the fateful day the complainant along with his father went to Nazir Ahmed and Aziz Ahmed with their personal work, and in the evening they were returning back, when they reached near Engineer Bungalow Road near house of Mushtaq Ahmed Bajkani, his father Sajan was ahead of them at distance of 5/6 paces. Meanwhile two motorcycles came from northern side street; accused Balach, Khadim and Faiz Muhammad were riding on one motorcycle, while Qurban and one unidentified accused were riding on another motorcycle, out of them accused Balach was armed with cartridge-pistol, Kadim and Faiz Muhammad were armed with guns, Qurban and unidentified culprit were armed with T.T. pistols; they alighted from their motorcycles. Accused Faiz Muhammad, Qurban and unidentified pointed their weapons upon complainant and accused Balach directly fired from his pistol at father of complainant, accused Khadim also fired straightly from his gun at father of complainant, while accused Faiz Muhammad and unidentified persons fired in air.
3. Heard the learned counsel for the applicant, learned State counsel and perused the record. The learned State counsel concedes to grant of bail to applicant.
4. Apparently the F.I.R. reveals that active role has been assigned to co-accused Balach and Khadim, who have allegedly fired upon deceased. Enmity between the parties is admitted. The role assigned to the present applicant is that he was armed with gun. The F.I.R. is silent in respect of firing on the deceased or any of the witnesses by the applicant Faiz Muhammad. Applicant is in jail since 23-7-2002. The learned Advocate for the applicant states at the Bar that not a single witness has come forward to record his evidence, only one mashir has been examined during tenure of four years. So far the vicarious liability is concerned it cannot be determined at this stage. The presence of applicant at the place of vardat and his involvement in the commission will be determined only at the time of trial. The case against the applicant is of further enquiry for the purpose of determining vicarious liability and sharing common intention. In the existing circumstances, I allow this bail application and direct that the applicant Faiz Muhammad be released on bail on his furnishing solvent surety in the sum of Rs.200,000 (Two lacs), and P.R. bond in the' like amount to the satisfaction of learned trial Court.
5. The observations made hereinabove are tentative in nature for the purpose of only disposal of bail application and may not influence the mind of trial Court which is free to appraise the evidence strictly according to merits of the case.
6. H.B.T./F-19/K Bail granted.