RAFIQUE vs THE STATE
This matter arises out of a bail application filed by the applicant Rafiq seeking post-arrest bail in a murder case pending before the Vth Additional Sessions Judge, Shikarpur. The core legal question is whether the applicant, against whom no fatal injury or overt act other than aerial firing after the commission of the crime is alleged, is entitled to further inquiry under subsection (2) of Section 497 of the Code of Criminal Procedure 1898. The court held that where no direct motive or fatal injury is attributed to the accused and the role is restricted to aerial firing alongside other co-accused who were not challaned for want of evidence, the case falls within the scope of further inquiry, making the applicant a fit case for bail. The key principle laid down is that an accused assigned a minor or corroborative role such as aerial firing, in the absence of direct fatal attribution and in circumstances of admitted matrimonial enmity, is entitled to post-arrest bail pending trial.
- Is an accused entitled to post-arrest bail when no overt act or fatal injury is attributed to him other than aerial firing?
- Does a case fall within the ambit of subsection (2) of section 497 of the Code of Criminal Procedure 1898 when matrimonial enmity is admitted and the principal motive is not directed against the applicant?
- Section 497(2), Code of Criminal Procedure 1898
- Section 34, Pakistan Penal Code 1860
ORDER
1. ' Applicant Rafiq seeks bail in a murder case pending trial before the Court of Vth Additional Sessions Judge, Shikarpur.
2. ' Facts of the prosecution case briefly stated are that on 18-12-1999 at about 7-30 a.m. While complainant Leemon, his cousin Muhammad Amin (deceased), his nephews namely Abdul Hafiz, Muhammad Sharif were working on the land of Fazul Khan, accused persons namely Allah Bux, Khadim Hussain, Rajib, Inam, Arab and Tajal, all armed with guns and accused Rafiq armed with a rifle came there and upon reaching accused Arab abused the complainant party and asked as to why they were not giving to Allah Bux (accused) the hand of their girl so they would not be spared, upon instigation of accused Arab the co-accused namely Allah Bux, Rajib, Inam and Khadim Hussain fired from their guns at Muhammad Amin who on receipt of fire shots fell down on the ground near a hedge. The P.Ws. Raised cries and beseeched the accused whereafter accused Rafiq, Arab and Tajal fired in air from their guns and left for their houses. The P.Ws. Then saw Muhammad Amin lying dead with fire-arm injuries on his chest and back side of chest.
3. ' The complainant thereafter, leaving the P.Ws. Abdul Hafeez and Muhammad Sharif at the Wardat, left for police station and lodged the F.I.R. Adding further that the accused namely Amir Bux and Bhooral were also having their hand in the incident.
4. ' The police have sent up for trial only accused Allah Bux (2) Inam and (3) Rafiq. All other accused have been let off for want of evidence and placed in Column No,2 of the challan.
5. ' I have heard Mr. Naseer Ahmed Khan Lodhi, Advocate for the applicant Mr. Sarfraz Khan Jatoi, Advocate for the complainant and Mr. G.A. Shahani for the State and have perused the material on record.
6. ' It was argued by the learned counsel for the applicant that the applicant has not caused any injury to any one in the incident. No overt act is alleged against him, except an stray allegation against the applicant of firing in air after death of the deceased. It was contended that matrimonial enmity is admitted between the parties and the applicant having no direct motive of committing the offence, false implication of the applicant cannot be ruled out and in view of the aforesaid contentions the case against the applicant would fall within the ambit of subsection (2) of section 497, Cr.P.C. Reliance was placed upon the following cases of Muhammad Haroon v. The State 1994 SCM R 2161, Mehmood Akhtar v. Haji Nazir Ahmed and 4 others 1995 SCM R 310, Muhammad v. The State 1998 SCM R 454 and Shahid v. The State 1994 SCM R 393.
7. ' On the other hand, Mr. Sarfraz Khan Jatoi, learned counsel for the complainant and Mr. G.A.
8. Shahani learned A.A.-G. Have opposed the bail prayer of the applicant stating that the released accused are likely to be joined with the accused already challaned and that the applicant was responsible under section 34, P.P.C. Reliance was placed upon Barkha and another v. The State 1983 PCr.LJ 502, Mubarik Shah v. The State 1986 SCM R 1681 and Babar Masih v. The State 2000 M LD 1487.
9. ' I have gone through the case-law cited above and considered the contentions raised by the respective counsel for the parties. The part assigned to the applicant in the incident is that he and the accused Arab (not challaned) and Tajal (not challaned) had fired in air while leaving the place of Wardat. Accused Khadim, Rajib, Arab and Tajal all armed with guns alleged to be present with the co-accused have not been challaned for want of evidence including Bhooral and Amir Bux whose names have been placed in Column No,2.
10. ' In view of the above, the case of the applicants in my humble view gets support from the authorities of the Honourable Supreme Court cited in favour of the applicant. The case-law referred against the applicant being on different facts and circumstances is not applicable in this case.
11. Resultantly, bail is allowed to the applicant Rafiq son of Tajal Jeho subject to his furnishing a surety in the sum of Rs,4,00,000 (four hundred thousand) and P.R. Bond in the like amount to the satisfaction of trial Court.
12. ' Bail to the applicant was allowed by a short order on 3-11-2000 while these are the reasons for the same.