MUHAMMAD ASHIQ vs MUHAMMAD TUFAIL AND Another
This matter arises from a petition for special leave to appeal converted into an appeal, challenging the order of the High Court granting post-arrest bail to respondent No. 1, who was accused under Section 302/34 of the Pakistan Penal Code 1860. The core legal question is whether the High Court was justified in granting bail by holding that the applicability of common intention required further enquiry because the victims were allegedly not the intended targets. The Supreme Court held that the High Court failed to properly consider the provisions of Section 34 of the Pakistan Penal Code 1860 in light of the specific allegations—namely that the respondent was present, armed with a pistol, raised a lalkara, and fled with co-accused after fatal shots were fired. The Court ruled that a prima facie case existed and the High Court exercised its discretion on wrong grounds. Consequently, the Supreme Court set aside the High Court's order, allowed the appeal, and directed the respondent to surrender to his bail bond, laying down the principle that constructive liability under Section 34 must be duly weighed when evaluating bail in heinous offences.
- Whether the High Court was justified in granting bail by holding that common intention required further enquiry because the victims were allegedly not the intended targets?
- Does the presence of an accused armed with a weapon who raised a lalkara constitute a prima facie case under Section 302 read with Section 34 of the Pakistan Penal Code 1860 for the purpose of bail?
- Can an order granting bail be set aside when the High Court exercises its discretion on wrong grounds regarding constructive liability?
- Section 34, Pakistan Penal Code 1860
- Section 302, Pakistan Penal Code 1860
1. WAHEEDUDDIN AHMED, J.-In this case notice was issued to the Advocate --General. Muhammad Tufail respondent No..1 has also put in caveat and he is represented by Kh. Sultan Ahmad At the request of the parties, this petition for special leave to appeal is converted into an appeal.
2. A case has been registered against respondent No. 1 and others under section 302/34, P. P. C. He has been released on bail by the High Court on the following observation :- "In the circumstances in which the fire was opened, the question of omission of intention between the petitioner and the three co-accused calls for further enquiry particularly because the persons hit by the shots were apparently not the intended victims. A general allegation towards the end of the F. I. R. That all the accused went away from the scene firing their weapons does not necessarily incriminate the petitioner until satisfactory evidence is advanced in that behalf."
3. The petitioner has contended that the above observation of the High Court is not in accordance with law. According to him, section 34, P. P. C. Applies to the facts of the present case and there was no question of further enquiry on the question of intention of respondent No. 1. Kh. Sultan Ahmad, learned counsel for the respondent No. 1 has contended that only allegation against respondent No. 1 is that he also brought an unlicensed pistol from haveli and came out with the co-accused by raising lalkara. No other overt act is attributed to him nor he is said to have fired at any one- of the injured P. Ws. Or the deceased.
4. After hearing the learned counsel for the parties, we are satisfied that the learned Single Judge of the High Court has not taken into consideration the provisions of section 34, P. P. C. While granting the bail to respondent No. 1. The allegation against respondent No. 1 is that he was present at the place of occurrence and was armed with pistol. He raised lalkara and thereafter, co-accused Said Muhammad fired from his gun which fatally injured the deceased Mst. Chiragh Bibi. Thereafter, Muhammad Sharif and Farmaish A.I also fired from their guns which injured two different persons, including a minor child. All the accused thereafter ran away making reckless firing with their weapons. In our opinion, if this allegation remained unrebutted, there was a prima facie case against respondent No. 1 under section 302/34, P. P. C. In these circumstances, the High Court was not justified in granting bail to respondent No. 1 and has exercised the discretion vested in it on wrong grounds. We would, therefore, set aside the order of the High Court. The appeal is allowed.
5. Respondent No. 1 is directed to surrender to his bail bond.
Cited by 4 cases
- RASOOL BUX Versus State 2017 YLRN 131
- MIR ZAMAN Versus State 2005 PCRLJ 1371
- GHULAM HAIDER Alias BILLO vs THE STATE 1978 PLD Lahore 670
- ABDUL WAHAB vs MUHAMMAD NAWAZ AND ANOTHER 1977 P Cr. L J 914