FAYYAZ ALi SHAH and 2 others vs KHURSHID and anothers
This is a criminal bail application filed by the petitioners seeking post-arrest bail in a case registered under Section 302/34 of the Pakistan Penal Code 1860, concerning the murder of Mukhtiar Ali. The core legal question before the Court was whether the petitioners were entitled to the concession of bail given the complainant's direct report, the presence of the accused at the crime scene, and their subsequent status as absconders. The Court held that the petitioners were not entitled to bail, as they were directly charged in the First Information Report and observed fleeing the scene of the crime while armed. The Court dismissed the argument that the prior grant of bail to a co-accused on the grounds of alibi entitled the petitioners to similar relief, noting that the co-accused's bail was specific to that plea. The key principle laid down is that where there is a prima facie case supported by direct identification at the scene and the accused have remained absconders, the concession of bail is not warranted, and questions regarding motive or enmity must be thrashed out during the trial.
- Does the grant of bail to a co-accused on the specific plea of alibi entitle other co-accused to bail?
- Is an accused entitled to bail when they have been directly charged in the FIR and remained absconders?
- Can the absence of specific motive or prior enmity be determined at the bail stage?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
' MIAN SHAKIRULLAH JAN, J.--- The petitioners, being charged under section 302/34, P.P.C. For the murder of Mukhtiar Ali, after having been failed in their attempts before the Court below to get bail have now approached this Court for the same relief.
2. The complainant Khurshid has lodged a report with the police party which was on mobile duty to the effect that on the day of occurrence his deceased brother Mukhtiar Ali has gone to the nearby fields to answer the call of nature. The moment he reached there the persons duly armed started firing at him. On the report of fire shot he went towards the field and saw his brother lying dead while the petitioners, alongwith Akhtar Munir, duly armed with fire-arms were running from the spot.
3. Learned counsel for the petitioner has contended that the complainant is not an eye-witness of the occurrence i,e, of actual firing but he has simply seen the accused while running from the spot; that though the motive has been stated as a loan but that has not been specifically attributed to any of the accused. He has also submitted that one of the co-accused Akhtar Munir has already been granted bail by this Court, may be on the plea of alibi, which indicates that the version of the complainant is not a sacrosanct.
4. The learned State Counsel as well as for the complainant have opposed the bail application.
5. The grant of bail to Akhtar Munir, co-accused is of no help to the petitioners as the same has been granted on the plea of alibi wherein it has been specifically observed:-- "We have decided to refrain from dilating upon the merits of the case even on the basis of tentative assessm ent. Therefore, we have confined ourselves to the impact of the plea of alibi on the case of the petitioner."
' The petitioners have been directly charged in the report by the complainant who has seen the accused near the place of occurrence duly armed while decamping from the spot. There is no previous enmity which furnishes motive for false implication and all the facts which have been agitated by the learned counsel for the petitioners and the motive or absence of the enmity will have to be thrashed at the time of trial. Moreover, the petitioners' also remained absconders for some time. The prosecution is having a prima facie case against them and they are not entitled to the concession of bail. Their bail application is, therefore, rejected.
Bail application rejected.
Cited by 1 case
- JAMSHED AHMED vs THE STATE 2006 MLD 288