NAUSHER and another vs THE STATE
This matter concerns a post-arrest bail application filed by two petitioners, Nausher and Javed Iqbal, who were charged under Section 302/34 of the Pakistan Penal Code 1860 for their alleged involvement in a murder case and murderous assault. The core legal question was whether the petitioners, who were alleged to have caused only blunt weapon injuries to the injured witnesses rather than the fatal injury to the deceased, were entitled to bail pending trial. The Court observed that the petitioners were not responsible for the firearm injury that caused the death of the deceased and that the extent of their liability regarding the application of Section 34 of the Pakistan Penal Code 1860, concerning common intention and facilitation, remained a matter for the trial court to determine after evidence is recorded. Holding that the petitioners had established a case for further inquiry, the Court granted post-arrest bail. The key principle laid down is that where an accused is not alleged to have caused the fatal injury and their role in the common intention is subject to evidentiary determination, they are entitled to bail for further inquiry.
- Are accused persons entitled to bail when they are not alleged to have caused the fatal injury in a murder case?
- Does the application of Section 34 of the Pakistan Penal Code 1860 automatically preclude the grant of bail to an accused who did not inflict the fatal wound?
- Is the determination of whether an accused's actions constituted facilitation of a crime a matter for the trial court rather than the bail stage?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
' Nausher son of Hammad and Javed Iqbal son of Nausher seek bail in case registered vide F.I.R.
No,412, with Police Station Saddar, Faisalabad, on 20-5-1999, under section 302/34, P.P.C., for causing the death of Muhammad Yaqoob and making murderous assault on Muhammad Farooq and Muhammad Ishaque.
2. Allegation contained in the F.I.R. Authored by Muhammad Khalid is that on the day of occurrence he alongwith Muhammad Yaqoob deceased, Muhammad Farooq and Muhammad Ishaq were standing in the Gali in front of their house when Fateh Sher armed with a gun, Nausher with a Sota and Javaid also with Sota came there and raised a Lalkara, whereupon Fateh Sher fired with his gun which hit Muhammad Yaqoob on his left flank. Nausher wielded his Sota hitting Muhammad Farooq on his head whereas Javaid Iqbal with his Sota injured Muhammad Ishaque by giving blow on his head. Motive for the occurrence is stated to be a fight in the morning with Nausher on some personal matter.
3. Post-arrest bail was declined by the Additional Sessions Judge, Faisalabad on 9-10-1999.
4. Learned counsel for the petitioner contends that fire-arm injury was caused to the deceased by Fateh Sher. The only allegation against the petitioners is that they gave blunt weapon injuries, to Muhammad Farooq and Muhammad Ishaque. Injury on the person of Muhammad Ishaque is labelled as Shajjah-i-Mudihah whose punishment is five years to the maximum whereas injury by Javaid is Shajjah-i-Khafifah whose punishment is two years. Conversely learned counsel for the complainant has stated that there is total application of section 34, P.P.C., as the petitioners facilitated the act to Fateh Sher who murdered Muhammad Yaqoob; the injuries and recovery of Sotas from the possession of petitioners prove their comp/ city in the crime. Learned State Counsel has adopted the arguments of the learned counsel for the complainant.
5. I have taken in consideation arguments of the respective counsel and have also seen the record.
6. Admittedly the injuries caused by the petitioners to Muhammad Farooq and Muhammad Ishaq are of blunt weapons. They are in continuous incarceration since 28-5-1999 and 10-6-1999 respectively; as to how far the acts of the petitioners would amount to facilitation of commission of murder committed by the co-accused is yet to be determined by the trial Court after the trial. For the present no injury having been caused by the petitioners to the deceased, they have been successful in making out a case of further inquiry and probe. Resultantly accepting application, I enlarge the petitioners on bail provided they furnish security in the sum of Rs,50,000 each with one surety each in the like amount to the satisfaction of the trial Court.