SHAH NAWAZ Versus State
The applicant sought bail in a murder case, facing allegations under sections 302, 504, and 34 of the Pakistan Penal Code 1860. The core legal question was whether an accused, present at the scene and armed but not having caused any specific injury, is entitled to bail when the weapon attributed to him was used by a co-accused. The High Court granted bail, holding that where no overt act is attributed to an accused, and the primary allegation is mere presence or facilitation, the question of vicarious liability constitutes a matter of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898. Furthermore, the court noted that an acquittal in a connected case regarding the recovery of the weapon used in the crime creates reasonable doubt regarding the prosecution's case. Consequently, the court determined there were no reasonable grounds to believe the accused committed an offense falling within the prohibitory clause, justifying the grant of bail.
- Does the mere presence of an accused at the scene of a crime, without causing any specific injury, entitle them to bail?
- Is the question of vicarious liability in a murder case considered a matter of further inquiry for the purpose of granting bail?
- Does an acquittal in a connected case regarding the recovery of a weapon create reasonable grounds for bail in a murder case?
- Section 302, Pakistan Penal Code 1860
- Section 504, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 13-E, Pakistan Arms Ordinance 1965
- Section 497(2), Code of Criminal Procedure 1898
ORDER
1. NADEEM AZHAR SIDDIQI, J.--- By this application, the applicant has prayed for releasing him on bail in case/crime No.26 of 2007, Police Station Johi, under sections 302, 504, 34, P.P.C.
2. Brief facts as disclosed in the F.I.R. are that on 6-4-2007, complainant along with Nazar Ali and Rajab Ali were returning from the invitation of one Bachal Gopang on a motorcycle which was driven by complainant himself while on the other motorcycle P.C. Qalndar Bux and H.C. Sultan Gopang were sitting which was driven by H.C. Sultan. When they reached near the Otaq of Dodo Khan Gopang at about 0720 hours, it is alleged that from the eastern side of the road, each one Dodo Khan who was empty-handed, Shahnawaz armed with government KK and Khuram armed with government KK appeared. It is stated that when H.C. Sultan tried to cross the accused persons, accused Dodo Khan took the government KK which was holding by his brother accused Shahnawaz and abused the complainant party, saying that they have made the applications against him hence today they would not be spared. Saying so accused Dodo Khan made straight fires at H.C. Sultan from KK which hit the brother of complainant P.C. Qalandar Bux and H.C. Sultan who fell down on the road. Thereafter, complainant party beseeched them in the name of Holy Qur'an. Then accused persons went towards the Otaq. It is stated that P.C. Rajab Ali while seeing the injuries, fell down after crying due to shock and died. Deceased P.C. Rajib Ali and injured H.G. Sultan and P.C. Qalandar Bux were brought at Civil Hospital Dadu, where P.C. Qalandar Bux also succumbed to injuries. Thereafter, such F.I.R. was registered by the complainant at Police Station Johi District Dadu.
3. The bail plea was rejected by the trial Court vide order, dated 26-3-2008.
4. The learned counsel for the applicant submits that the only allegation against the applicant is his presence at the time of incident armed with gun and that there is no allegation of his causing any injury to the deceased. He then submits that applicant was acquitted in the connected case of 13-E, Pakistan Arms Ordinance, 1965 and this makes a case of further inquiry. The learned counsel has relied upon the following reported cases.
(1) Muhammad Sachal v. The State 1969 SCMR 1654, (2) Attaullah and others v. The State 1999 SCMR 1320, (3) Faraz Akram v. The State 1999 SCMR 1360, (4) Muhammad Qasim v. The State 2003 PCr.LJ 775.
5. The learned State Counsel submits that three accused persons were nominated in the F.I.R. including the applicant and two persons lost their precious lives. He then submits that the applicant has facilitated the murder as his gun was used in the murder.
6. I have heard the learned counsel for the parties and perused the record made available before me.
7. The only allegation against the applicant is his presence at the time of incident armed with gun. No other overt act has been attributed to applicant. The applicant has not caused any injury to the deceased. In the other connected case of recovery of weapon on his pointation, the applicant was acquitted and that order appears to have not been challenged and this create a reasonable doubt. The vicarious liability of the applicant in the case is to be decided at trial and is a matter of further enquiry. In the reported case of Mehmood Ahmed v. Haji Nazeer Ahmed 1995 SCMR 310, the Honourable Supreme Court relying upon a earlier reported case of Basharat Hussain v. Ghulam Hussain and others 1978 SCMR 357 allowed bail to an accused charged with facilitating the murder on the ground of further enquiry. In another reported case of Attaullah and 3 others v. The State 1999 SCMR 1320, the Honourable Supreme Court set aside the order of the High Court cancelling bail and restored the order of trial Court granting bail on the ground that accused were not alleged to have caused any injuries to the deceased.
8. In view of the above, I am satisfied that there are no reasonable grounds for believing that the applicant has committed an offence falling under the prohibitory clause of section 497(2), Cr.P.C.
9. For the above reasons by short order, dated 7-7-2008, the bail application was allowed.
10. H.B.T./S-56/K ???????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.
Cited by 1 case
- SHABBIR AHMAD and another vs THE STATE and another 2010 MLD 185