ZAHID PERVAIZ vs THE STATE
This matter concerns a petition for post-arrest bail filed by Zahid Pervaiz, who was charged under Section 302 and Section 34 of the Pakistan Penal Code 1860 for his alleged involvement in a murder case. The core legal question was whether the petitioner, who was accused of merely delivering a message that led the deceased to the scene of the crime, was entitled to bail despite being empty-handed and not having participated in the actual firing, and whether his status as a proclaimed offender precluded such relief. The court held that the petitioner was entitled to bail, noting that the prosecution failed to establish a prima facie case of conspiracy or common intention, as the petitioner was unarmed and did not participate in the fatal assault committed by the co-accused. The court laid down the principle that the mere fact that an accused remained a fugitive from law or was declared a proclaimed offender is not, in isolation, sufficient to disentitle an accused person to the concession of bail when the merits of the case otherwise support it.
- Does the status of a proclaimed offender automatically disentitle an accused to the concession of post-arrest bail?
- Is a person who merely delivers a message to a victim liable for murder under Section 34 of the Pakistan Penal Code 1860 without evidence of a prior conspiracy?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
' Zahid Pervaiz seeks post-arrest bail in a case under section 302, read with section 34, P.P.C., registered with City Police, Burewala, on 16-12-2001.
2. The occurrence had taken place on the same day at 7-00 p.m. According to the prosecution case, Ehsan-ul-Haq (complainant) at about 'Zohar-Vela' was sitting in- his 'Baithak' at Hasilpur. His brother Ali Akbar, Majid Saleem and Wazir Ali (P.Ws.) were also present there, when Zahid Pervaiz (petitioner) went there and told Ali Akbar that he had been summoned by Munir Ahmad Bhatti to Burewala to collect money from him. Zahid Pervaiz further asked him to accompany as he himself had to go to Burewala, upon which the complainant, his brother Ali Akbar and other P.Ws. Also decided to go to Burewala. Faheem (accused) was sitting with Munir Ahmad Bhatti, when complainant and his companion reached the house of Munir Ahmad Bhatti. At about 7-00 p.m.
Munir Ahmad Bhatti asked Ali Akbar to accompany him to the house of a friend to collect money.
The complainant and other P.Ws. Also got up and accompanied the accused. Faheem, Munir Ahmad Bhatti and Ali Akbar (deceased) were moving ahead at some distance, when they reached near the Railway-Line. Munir Ahmad Bhatti and Ali Akbar (deceased) entered into altercation. Ali Akbar (deceased) claimed an amount of Rs,30,000, whereas Munir Ahmad Bhatti shouted that he owed Rs,10,000 to the deceased. In the meantime, Munir Ahmad Bhatti and Faheem took out pistols from the fold of their Shalwars and fired at Ali Akbar. The complainant tried to intervene but the accused resorted to firing in the air and decamped. The matter was reported to the police at 9-05 p.m.
3. All the accused became fugitive from law. The petitioner was, however, arrested on 3-4-2002.
After the submission of the challan against the petitioner, the remaining accuseds were also arrested.
4. I have considered the arguments put forth by the learned counsel for the parties and have perused the record. The only part played by the petitioner is that he went to the house of the complainant and delivered the message of Munir Ahmad Bhatti to Ali Akbar (deceased). A perusal of the F.I.R. Shows that Munir Ahmad Bhatti and Faheem (co-accused) took out pistols from the fold of their Shalwars, immediately, after the altercation, which took place between Munir Ahmad Bhatti and Ali Akbar (deceased). The petitioner was empty-handed. There is nothing on the record to show that he delivered the message of Munir Ahmad Bhatti to Ali Akbar as a result of conspiracy.
The mere fact that the petitioner remained fugitive from law and was declared as a proclaimed offender, alone, is not sufficient to disentitle him to the concession of bail. I accept this application and enlarge the petitioner on bail subject to furnishing bail bond in the sum of Rupees one lac with one surety in the like amount to the satisfaction of the trial Court.
Cited by 3 cases
- TARIq AZIZ-UD-DIN and others vs NOT 2010 SCMR 1301
- TARIQ AZIZ-UD-DIN and others: In re Human Rights vs NOT 2011 PLC (C.S.) 1130
- TARIQ AZIZ UD DIN and others vs FEDERATION OF PAKISTAN 2011 PLJ SC 137