ALLAH DINO Versus THE STATE
The applicant sought post-arrest bail in a criminal case involving offences under sections 302, 457, and 380 of the Pakistan Penal Code. The prosecution alleged that the applicant along with co-accused was seen driving away stolen buffaloes and that during pursuit, a co-accused fired a fatal shot resulting in the death of the complainant's cousin. The core legal question was whether the applicant, to whom no fatal overt act was attributed and whose case potentially involved vicarious liability, was entitled to bail, particularly considering arguments regarding abscondence and the recovery of a scissor. The court held that since no direct role attracting capital punishment was attributed to the applicant and the evidentiary value of the recovery and abscondence required deeper appreciation and further inquiry, the applicant had made out a case for bail. The court laid down the principle that abscondence alone does not forever deprive an accused person of the right to bail, and cases where no direct capital overt act is proven and further inquiry is warranted fall outside the strict prohibitory clause for bail purposes.
- Whether an accused to whom no direct capital overt act is attributed is entitled to post-arrest bail?
- Does abscondence alone disentitle an accused from the grant of bail forever?
- Whether the recovery of an incriminating article requiring deeper appreciation constitutes grounds for further inquiry under bail adjudication?
- Section 302, Pakistan Penal Code 1860
- Section 457, Pakistan Penal Code 1860
- Section 380, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
- Section 164, Code of Criminal Procedure 1898
- Section 460, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
1. GULZAR AHMED, J. ---Applicant Allah Dino son of Ali Sher has approached this Court for grant of bail in offence under sections 302, 457, 380, P.P.C. in Crime No.39 of 2001, Police Station Dhamrah.
2. The facts narrated in the complaint by Rajib Ali son of Noor Muhammad Junejo are that the complainant resides in a Pacca house surrounded by a wall having a wooden door. On the day of incident i.e. 30-4-2001 at .2-00 hours at night, the complainant and his family members were sleeping and his cattle were tethered in the courtyard. The complainant woke up on barking of dogs and found that the exit door was open and the buffaloes were missing. The complainant raised alarm, which attracted his cousins Ghulam Shabir, Bashir Ahmed and Abdul Sattar. Complainant and the above named witnesses chased the thieves and about 2-30 a.m. when they reached near watercourse of Juneja Chandia Sim Shakh, they found four persons namely Niaz and Dur Muhammad armed with kalashnikovs, the present applicant and Munawar armed with guns and three unidentified persons were taking away the complainant's buffaloes. Complainant challenged the accused persons on which accused Dur Muhammad fired which hit the complainant's cousin Ghulam Shabir, who fell down. The culprits however, decamped while firing in the air and left the buffaloes behind. The injured Ghulam Shabbir was taken to hospital, where he succumbed to the injuries. The complaint was accordingly lodged.
3. It is contended by the counsel for the applicant that the complainant and applicant are known to each other and there is political enmity between them and that earlier also the applicant was involved in a criminal case at the behest of the complainant party. The applicant was however, acquitted. He states that no overt act is attributed to the present applicant and the case of the present applicant at best could be of vicarious liability, which would require further inquiry. With regard to the absconsion of the applicant, the counsel submits that the applicant was not aware of the case. In support of his submission, he has relied upon the case of Ali Nawaz v. State 1988 PCr.LJ 1736, Sharbat v. State 2003 MLD 1191.
4. The complainant counsel has opposed the bail application and has contended that name of the present applicant appears in the complaint and tie has also been implicated in the statements of the P. Ws, under sections 161 and 164, Cr.P.C. He has further contended that the door of the complainant house was cut by a scissor and such scissor was recovered from the present applicant. He states that the applicant being absconder is not entitled to the grant of bail. In support he has relied upon the case of Sher Ali alias Sheri v. State 1998 SCMR 190. The counsel for the State has also opposed the bail and has contended that the case against the present applicant is that of section 460, P.P.C. which provides punishment for life imprisonment and come within the prohibitory clause of section 497, Cr.P.C.
5. We have asked the State Counsel to show us a challan, a photostat copy of which was provided to us in which there is no mention of the offence under, section 460, P.P.C.
6. We have considered the arguments of the learned counsel and have gone through the record.
7. The F.I. R. does not contain allegation that complainant has seen the present applicant coming in his house and-taking away the buffaloes; but it was only at the watercourse of Juneja Chandia Sim Shakh the complainant saw the present applicant along with co-accused, taking away the complainant's buffaloes. It was at this place that the deceased Ghulam Shabir was injured. The counsel for the complainant also admitted that in the complaint as well as in the statements under sections 161 and 164, Cr.P.C. no direct role of commission of any offence attracting- capital punishment has been attributed too the present applicant. He has however, stated that a scissor has been recovered from the, present applicant which directly connects him with the crime. In our view such the question of recovery of the scissor and its implication require deeper appreciation.
8. As regards abscondence, the applicant has submitted that he was not aware of the case, in any event, abscondenoe alone should not come in way of grant of bail. No doubt a fugitive .from law loses some of his rights, but he does not lose right of bail forever. The applicants bail application was rejected by the trial Court in January, 2003 and has suffered imprisonment for sufficient period, without trial.
9. We are satisfied that the applicant has made out a case for grant of bail. Accordingly, bail application is allowed. The applicant is directed to be released on bail on furnishing surety in the sum of Rs.2,50,000 and P.R. Bond in the like amount, to the satisfaction of the trial Court.
10. H.B.T./A-85/K Bail granted.
Cited by 3 cases
- SAEED KHAN vs The STATE 2014 YLR 1944
- MUHAMMAD HAYAT vs THE STATE 2009 MLD 779
- MUHAMMAD HAYAT vs THE STATE 2008 YLR 72