ABDUL MALIK vs THE STATE
This matter involves a criminal bail application filed before the Sindh High Court by the applicant Abdul Malik, who was implicated in an offense under sections 147, 148, 149, 302, and 324 of the Pakistan Penal Code arising from an F.I.R. concerning a cross-fire between two rival groups resulting in the death of a bystander. The core legal question addressed is whether an accused who is present and armed during a cross-fire, but to whom the fatal injury is not specifically attributed, is entitled to post-arrest bail under the principle of further inquiry. The court held that the applicant's presence at the scene armed with a pistol, coupled with his participation in the cross-fire, establishes prima facie grounds for vicarious liability, rendering the lack of specific attribution for the fatal shot insufficient to warrant bail at this stage. The key legal principle laid down is that the mere absence of a specific attribution of a fatal injury to a particular participant in a cross-fire does not automatically create a case for further inquiry under section 497(2) of the Code of Criminal Procedure when vicarious liability and active participation are otherwise established.
- Is an accused entitled to bail merely because the fatal injury is not specifically attributed to him in a cross-fire case?
- Does participation in a cross-fire with a deadly weapon attract vicarious liability under section 302 read with section 149 of the Pakistan Penal Code 1860?
- What constitutes sufficient grounds for further enquiry under section 497(2) of the Code of Criminal Procedure 1898 in a murder case?
- Section 147, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
1. ' The applicant Abdul Qadir is involved in an offence under sections 147, 148, 149, 302 and 324, P.P.C.
2. Arising out of F.I.R. No,207 of 1998 of Police Station Chakiwara, Karachi South.
3. ' Brief facts of the case giving rise to this bail application are that on 12-12-1998 complainant Muhammad Ayaz lodged F.I.R. Stating therein that on the said date he was sleeping in his house when he heard fire shots in the street. He came out and found that two terrorist groups were involved in cross-fire and Mst. Hanifa Bibi wife of his brother was lying injured. She told him that she received fire-arm injury at the hands of Shahzad group. The complainant has further stated in the F.I.R. That he saw Shahzad, Shabbir, Abdul Wahad, Abdul Malik and others who were armed with T.T.
4. Pistols and they were firing on their rival group. The vicinity people stated that there was cross-fire in between Shahzad group and Khuda Johi group and due to the said cross-fire Mst. Hanifa Bibi has sustained bullet injury at the hands of Shahzad group. Police registered F.I.R. And started investigation. On completion of investigation the challan was submitted against the applicant.
5. ' It is contended by Mr. Khadim Hussain Abro, learned counsel for applicant that the applicant was a passer-by and he has also sustained injury at the hands of said terrorists. It is contended that the injuries sustained by the deceased have not been attributed to the present applicant but the same is attributed to co-accused Shahzad. Learned counsel has argued that case against present accused requires further enquiry as there were only two empty bullets found at the spot. It is argued that there is no material available on the record to connect the accused with the crime and no recovery has been made from him.
6. ' Mr. Habib Ahmed learned A.A.-G. Has opposed this bail application on the ground that applicant was armed with T.T. Pistol and was seen indulged in cross-fire with the opposite group. He has stated that there is material available on the record to connect the accused with the alleged incident.
7. ' The contents of F.I.R. Reveals that two groups of terrorists were making cross-fire which resulted in the death of Mst. Hanifa Bibi. She sustained injury which is attributed to Shahzad group consisting of the present applicant Abdul Malik. He alongwith co-accused was seen firing on opposite party by T.T. Pistol. He is himself injured in firing and he was armed with T.T. Pistol. The fatal shot may not have been fired by him but at least his presence at the spot is established. He can be vicariously liable for the death of lady. Reference can be made to a case of Shah Zaman and 2 others v. The State PLD 1994 SC 65 wherein their Lordships have held as under:-- "Since trial Court has granted bail mainly on the ground that fatal injury of deceased is not pointedly attributed to anyone of the appellants, hence it is a question of further enquiry and High Court has disagreed with this finding, it would be necessary at this stage to study the legal aspect of the matter. Section 497(2), Cr.P.C. Provides that if it appears to the Court at any stage that there are no reasonable grounds for believing that accused committed a non-bailable offence, but there are sufficient grounds for further enquiry into his guilt, such accused shall be released on bail.
8. Now what will constitute as sufficient grounds for further enquiry, would depend upon peculiar facts of each case and no hard and fast rule can be laid down for that purpose. Every hypothetical question which can be imagined would not make it a case of further enquiry simply for the reason that it can be answered by the trial Court subsequently, after evaluation of evidence. Broadly speaking the condition laid down in clause (2) of section 497, Cr.P.C. Is that there are sufficient grounds for further enquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or tend to show that accused is not guilty of the offence with which he is charged. For example if accused is charged for offence under section 302, P.P.C., but there are grounds for further enquiry which may show that he may not be convicted of charge under section 302, P.P.C. And acquitted or convicted for a lesser offence. In the instant case the fact that in F.I.R. It is not pinpointed as to which appellant had what weapon and who caused the fatal injury, would not alter the charge on conviction if prosecution evidence is believed and may have some effect only on the quantum of sentence."
9. ' The reference also be made to a case of Ghulam Nabi v. The State 1996 SCM R 1023.
10. Under the circumstances at this stage it cannot be held that there are no reasonable grounds to believe that the applicant is not guilty of the offence with which he is charged. The applicant does not deserve bail which is declined.
Cited by 3 cases
- Mst. MARIYAM vs The STATE 2013 P Cr. L J 1448
- SALAMAT ALI alias BHUTTA vs THE STATE 2006 P Cr. L J 1131
- BASHIR AHMAD and others vs THE STATE 2005 YLR 1440