FATEH SHER vs THE STATE and anothers
This criminal petition was filed seeking the cancellation of post-arrest bail granted to respondent No. 2, Gulbaz Khan, by the Sessions Judge, Mianwali, in a case involving charges under Section 302/109 of the Pakistan Penal Code 1860. The prosecution alleged that the respondent had abetted the murder of Muhammad Javed by inciting his sons to commit the crime as revenge for previous injuries caused to his son. The core legal question was whether the bail granted to the respondent should be cancelled given the allegation of abetment. The High Court held that the respondent was not present at the scene of the crime and that the prosecution's story regarding the alleged abetment required further inquiry, as it was improbable that a conspiracy would be hatched in the presence of witnesses. Finding that the respondent had not misused the concession of bail and that the Sessions Court had provided sound reasoning, the High Court dismissed the petition. The key principle established is that bail should not be cancelled where the prosecution's case requires further inquiry and the accused has not misused the concession of bail.
- Does the mere allegation of abetment in a murder case constitute sufficient grounds for the cancellation of bail?
- Is bail liable to be cancelled when the accused was not present at the scene of the occurrence?
- Should bail be cancelled if the prosecution's story regarding the alleged conspiracy requires further inquiry?
- Section 302, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
ORDER
' Respondent No,2 namely Gulbaz Khan alongwith another person is involved in a case under section 302/109, P.P.C. Registered at Police Station, Chakarala, District Mianwali for the murder of Muhammad Javed. According to the F.I.R., the aforesaid respondent had allegedly hatched conspiracy and had exhorted his sons Ahmad Nawaz and Allah Nawaz to finish the deceased as the latter had caused knife injuries to his son Allah Nawaz. In this respect, he had told them two days prior to the occurrence that they were shameless as they were unable to take revenge from the said deceased. The occurrence of abetment was seen allegedly by Khan Muhammad and Nasarullah P.Ws. Who had gone to the house of the respondent in order to effect compromise between the deceased party and the accused party in respect of the case registered for causing knife injuries to Allah Nawaz. Allegedly in pursuance of that abetment, son of the respondent namely Ahmad Nawaz while armed with .12 bore gun challenged Muhammad Javed deceased on the day of occurrence by shouting that he would teach him a lesson for causing injuries to his brother Allah Nawaz. However, at that time the present respondent was not present. He applied for bail in the Court of learned Sessions Judge, Mianwali who admitted him to bail by allowing his post-arrest bail application vide his order, dated 13-5-1999. It was observed by the learned Sessions Judge, Mianwali that petitioner (respondent No,2) was not the actual culprit nor he was present at the time of occurrence and that the story of abetment needed further enquiry because such a secret conspiracy could not be made in such a way so as to be heard by the aforenamed P.Ws.
2. The present petition for cancellation of bail is moved on the ground that since a positive role of abetment is attributed to the respondent, therefore, he was not entitled to bail.
3. I have considered the foregoing contention and find that respondent No,2 was not present at the spot and the story about abetment actually needed further enquiry as nobody would take such a secret decision in such a manner that it should be known to someone else as had been allegedly known by the P. Ws. Namely Khan Muhammad and Nasarullah. There is no allegation that the aforesaid respondent had misused the concession of bail. As such, there is no ground for the cancellation of bail granted to him be the learned Sessions Judge, Mianwali by advancing sound reasons in the impugned order. The petition is dismissed in limine.