AZIZ vs THE STATE
The petitioner sought post-arrest bail in a murder case registered under Section 302/34/109 of the Pakistan Penal Code 1860. The prosecution alleged that the petitioner was present at the scene armed with a pistol but did not attribute any specific injury to him. Instead, the prosecution claimed that a co-accused snatched the petitioner's pistol and used it to cause injury to one of the deceased. Furthermore, the recovery of the weapon was effected from the co-accused, not the petitioner. The court observed that the petitioner had been in judicial custody since May 1999 and that no active role in the commission of the crime was attributed to him. Determining that the question of common intention required further inquiry at trial, the court held that the petitioner's case fell within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898. Consequently, the court accepted the bail petition, finding sufficient grounds for the grant of relief.
- Does the mere presence of an accused at the scene of a crime, without an active role, entitle them to bail under Section 497(2) of the Code of Criminal Procedure 1898?
- Is the recovery of an alleged weapon from a co-accused rather than the petitioner a relevant factor in determining bail?
- When does the question of common intention under Section 34 of the Pakistan Penal Code 1860 become a matter for trial rather than a ground for refusing bail?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
' The petitioner seeks post-arrest bail in a case vide F.I.R. No,273, dated 30-4-1999 under section 302/34/109, P.P.C. Registered at Police Station Civil Line, Rawalpindi.
2. Allegation against the present petitioner is that he being armed with a pistol alongwith his co- accused Jahangir armed with a hatchet, Shafi Ahmad armed with iron "Mukka". Ishfaq Ahmad armed with a Danda and Nigah armed with an iron bar committed the murder of Habib-ur- Rehman and Muhammad Saghir.
3. The petitioner applied for bail after arrest which relief was declined to him by the learned Additional Sessions Judge, Rawalpindi, vide order, dated 30-9-1999. Hence the instant petition.
4. Arguments have been heard and record perused.
5. Contention of learned counsel for the petitioner is that as per prosecution version, the petitioner is shown to be armed with a pistol at the relevant time. However, he has not been assigned any role of causing any injury to either of the deceased. On the other hand the injuries to the deceased are attributed to his co-accused Jahangir, Khalil Ahmad and Ishfaq Ahmad. He further contended that prosecution case is that after having caused injuries by Jahangir to Habib-ur-Rehman and Saghir deceased, he had snatched the pistol from the present petitioner and had caused a pistol injury on the chin of Saghir. He submits that even if it is assumed that the petitioner was present, even then it does not stand to reason that why he did not participate or cause any injury to either of the deceased. He further submits that recovery of the alleged pistol has been effected not from the present petitioner but from his co-accused Jahangir who is alleged to have used the said weapon. He further submits that under similar circumstances, relief of bail has been granted and placed reliance upon Mumtaz Hussain and 5 others v. The State 1996 SCM R 112, Muhammad Haroon and another v. The State 1994 SCM R 2161 and Attaullah and 3 others v. The State and another 1999 SCM R 1320. He further submitted that the petitioner was arrested on 9-5-1999 and since then is in judicial lock-up.
6. Conversely, the bail application has been opposed by learned counsel for the State. However, he admitted that recovery of pistol alleged to be in possession of the present petitioner has been made from his co-accused Jahangir. He further submits that investigation is complete and an incomplete challan has been submitted in the Court against all the accused nominated in the F.I.R.
7. As per contents of the F.I.R., only role attributed to the present petitioner is that he was present at the spot armed with pistol. As per own prosecution stand, he has neither caused say injury to either of the deceased nor participated in any manner except that his pistol was snatched from him by his co-accused Jahangir who is alleged to have caused an injury to one of the deceased Saghir.
The recovery of alleged pistol used in the commission of this offence and stated to be in possession of the present petitioner, has not been made from him but it has been effected from his co-accused Jahangir. The question if the petitioner shared common intention with his co-accused is to be seen at the time of trial. The petitioner having been in jail since 9-5-1999 and no active role having been attributed to him, his case squarely falls within the ambit of section 497(2), Cr.P.C.
Accordingly, the petition is accepted and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs,1,00,000 (Rupees one lac only) with two sureties each in the like amount to the satisfaction of the trial Court.
Cited by 1 case
- NABI BUX alias NABU vs THE STATE 2005 YLR 1531