SARWARI vs The STATE
This petition for leave to appeal was filed against the judgment of the Peshawar High Court, which had rejected the petitioner's bail application and subsequent review application. The prosecution's case was that during a police raid on a gambling site, the petitioner was apprehended by a police constable. The petitioner then called out to his co-accused to get him released, prompting the co-accused to pull out a pistol and shoot the constable, causing fatal injuries, which allowed the petitioner to escape. The petitioner contended that no overt act was attributed to him and that his plea for help did not amount to instigating the co-accused to fire. The Supreme Court held that a specific role of instigation had been ascribed to the petitioner, which led directly to the fatal shooting of the police officer. Consequently, the Court determined that the case did not fall under the category of further inquiry and refused leave to appeal.
- Whether a call for assistance by an apprehended accused to a co-accused, resulting in a fatal shooting by the co-accused, constitutes sufficient instigation to disentitle the accused to bail?
- Does the absence of a direct physical overt act by an accused warrant the grant of bail on the ground of further inquiry when there is an allegation of active instigation leading to murder?
ORDER
1. ABDUL QADEER CHAUDHRY, J.--Leave to appeal is sought against the judgment dated 8-5-1990 of the Peshawar High, Court.
2. The facts, in brief, are that the report of the incident was lodged by Habibur Rehman, Head Constable, on 22-2-1990 wherein he stated that an informer had disclosed that the petitioner along with others was busy in gambling. A raid was conducted by the police and they found the petitioner and others playing gambling. In order to arrest, they were encircled but all of them started running. Riaz Head Constable arrested the petitioner. The petitioner called out Gul Khan that he had been arrested and he should get him released. Thereupon Gul Khan pulled out a pistol from underneath his shirt and fired a shot at Muhammad Riaz deceased one after the other Riaz was fatally injured and the petitioner decamped.
2. Learned counsel for the petitioner submitted that no overt act has been attributed to the present petitioner. The petitioner had only requested Gul Khan for help, and he did not instigate him to make fire at the deceased.
3. Specific role has been ascribed to the petitioner. The High Court in its detailed order rejected his bail application. A review application was also moved which was also rejected. As the petitioner was apprehended by the police, he instigated his co-accused to get him released whereupon the co-accused Gul Khan had fired at the deceased. Prima facie it cannot, therefore, be argued that it is a case of further inquiry.
4. The petition has no force. The same is dismissed and leave to appeal is refused.
Cited by 1 case
- ALI BUX Versus State 2020 PCrLJN 162