DADAN Versus THE STATE
This bail application arose from a case registered under Section 302 read with Section 149 of the Pakistan Penal Code 1860, where the applicants were accused of being part of an unlawful assembly that attacked an under-trial prisoner inside a bus, resulting in his death. The prosecution alleged that while two co-accused fired the fatal shots, the applicants resisted the police and attempted to fire at a constable. The applicants argued that no overt act of causing injury to the deceased was ascribed to them, no weapons were recovered from them, and a separate case for resisting police had already been registered in which they were granted bail. The High Court of Sindh observed that the applicants did not target the deceased and no crime weapons were recovered from them. Holding that the question of their vicarious liability under Section 149 required determination at trial, the Court allowed the application and granted post-arrest bail to the applicants.
- Whether post-arrest bail can be granted to accused persons to whom no overt act of causing injury to the deceased is attributed in a murder case?
- Whether the question of vicarious liability under Section 149 of the Pakistan Penal Code 1860 is a matter of further inquiry at the trial stage when no direct role in the killing is alleged?
- Does the lack of recovery of any crime weapon from the accused support the plea for grant of post-arrest bail?
- Section 302, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 353, Pakistan Penal Code 1860
ORDER
The applicants alongwith two others are being tried in a case arising out of Crime No. 14 of 2003 of Police Station Sakrand punishable under section 302 read with 149, P.P.C.
2. It is the case of prosecution that deceased Azizullah, was an under trial prisoner and was being taken by the police alongwith another UTP in a. Bus .for their production before the Court. Complainant Habibullah brother of deceased Azizullah and his nephews Raza Muhammad and Hidayatullah were travelling in the same bus. It is alleged that accused Qadir Bux, Shakal, Karim Bux, Dadan and Zulfiqar also boarded the same bus and on the way Karim Bux took out a country made pistol from the fold of his trousers and fired at Azizullah which hit him on his face. A police constable grappled with him and caught hold of him. Accused Qadar Bux also took out a pistol and fired at Azizullah which too hit him. It is alleged that the applicants also took out pistols and tried to fire.at constable. However, the driver stopped the bus and the applicants managed to escape. Accused Qadar Bux also ran away and only Karim Bux was captured on, the spot. Azizultah succumbed to injuries in the hospital. The said police constable lodged another F.I.R. (Crime No. 15 of 2003) at the same police station for an offence punishable under sections 353 read with 149, P.P.C.
3. I have heard Mr. Muhammad Sharif Siyal, learned counsel for the applicants and Mr. Anwar H. Ansari learned State Counsel.
4. Mr. Siyal contended that the only allegation against the applicants is that they resisted the police for which a separate case has been registered wherein they have been granted bail by the lower Court and as far their role in the instant incident is concerned no overt act of causing any injury to the deceased is ascribed to them. He submitted that only two empties of .12 bore pistol were secured from the scene which can at the most be attributed to the other accused and not the applicants. He further urged that the other UTP Qabool has not supported the case and there is no recovery of the crime weapons from the present applicants. He relied on Attaullah and 3 others v. The State 1999 SCMR 1320 and Faraz Akram v. The State 1999 SCMR 1360 in support of his contentions.
5. Mr. Anwar H. Ansari, learned State Counsel vehemently opposed the bail on the ground that the applicants resisted the police which prima facie establishes their vicarious liability towards the commission of offence. He submitted that the police has also fired from their SMGs, and six empties of SMG have been secured from the place of incident i.e. to say the Bus.
6. I have considered all these contentions in the light of facts and circumstances of the case and the authorities cited at the bar. Instantly, the main allegation against the applicants is that they resisted the police but it is admitted in the F.I.R. that the police succeeded in capturing accused Karim Bux who, had made the first fire and Qadar Bux had also made a fire and only thereafter these applicants had put in resistance. There is no direct allegation that the applicants attempted to make a fire at the deceased. There is also no recovery of any crime weapon from them. In the case 1999 SCMR1360 bail was granted on the grounds that no overt act was allegedly ascribed to the accused except of ineffective firing, and the fatal shot was attributed to the co‑accused and that the question of vicarious liability in the circumstances was to be determined at the trial. The authorities cited by the learned counsel in this eventuality lend full support to the bail plea.
7. In view of the above, the application is allowed the applicants be released on bail on furnishing surety in the sum of Rs.3,00,000 (Rupees three lacs) each and executing P.R. Bond in the like amount the satisfaction of the trial Court. The application stands disposed of.
N.H.Q./D‑57/K Bail allowed.