ZAFAR ALI vs THE STATE
The petitioner sought post-arrest bail in a case registered under sections 302, 148, 149, 337-A, 337-D, 337-F, 324, and 452 of the Pakistan Penal Code 1860, arising from a clash between two parties over the possession of an Ihata. The core legal question was whether the petitioner was entitled to post-arrest bail considering the contentions regarding vicarious liability, a cross-version of the incident, and his juvenile age at the time of the occurrence. The Lahore High Court held that the case called for further inquiry into the petitioner's guilt under subsection (2) of section 497 of the Code of Criminal Procedure 1898, as the question of his vicarious liability and the identity of the aggressor required determination at trial, and further noted that the first proviso to section 497(1) was attracted given his age as reflected in his School Leaving Certificate. The petition was consequently accepted and the petitioner admitted to bail.
- Whether the question of vicarious liability for murder warrants further inquiry for the purpose of bail?
- Does the existence of a cross-version make the determination of the aggressor a matter for trial rather than bail stage?
- Is a school leaving certificate preferred over police assessment for determining the age of an accused for bail purposes?
- Does being a juvenile under the age of thirteen attract the first proviso to section 497(1) of the Code of Criminal Procedure 1898?
- Section 302, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 337-A, Pakistan Penal Code 1860
- Section 337-D, Pakistan Penal Code 1860
- Section 337-F, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 452, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
' Zafar Ali, the petitioner through the instant petition has sought for post-arrest bail in case F.I.R.
No,93, dated 2-3-2003 originally registered under sections 302/148/149, P.P.C. With Police Station Saddar Arifwala, District Pakpattan Sharif.
2. Later on, the police have added sections 337-A(i), (ii), (iii)/337-D/337-F(i)(v)/324/452, P.P.C. In the same.
3. Briefly the facts of the prosecution case as contained in the F.I.R. Are that on 2-3-2003 at about 4-30 p.m. Rehmat Ali alias Tulla armed with Chhuri, Zafar (petitioner): with Chhuri, Sakhi with Chhuri and Amin with Chhuri came out of their house behind the shops raising Lalkaras. Rehmat Ali alias Tulla said that Zahid etc. May be caught and taught lesson for taking back Ihata in Panchayat and their insult there. Thereupon, Sakhi Muhammad gave Chhuri blow to Younus hitting on the left backside of his chest, who fell down on the ground. Zafar gave him (complainant) Chhuri blow hitting on his left side of the head. Rehmat Ali alias Tulla gave Chhuri blow to Khushi Muhammad on his right hand's thumb. Khushi Muhammad rushed to his house and brought Chhuri therefrom and in self-defence gave injuries to Sakhi Muhammad etc. Sakhi Muhammad's wife also came out of her house with a Sota and caused blows with the same to him (complainant) and Khushi Muhammad. On hearing the noise, Farzand All and Muhammad Shaban were attracted to the spot.
Farzand Ali picked up Soti from the ground and caused blows with the same to the parties to separate them and got them separated. Sakhi Muhammad etc. Ran away with their weapons.
Younus succumbed to his injuries in the hospital.
4. The motive behind the occurrence is dispute over possession of Ihata between the parties.
5. It has been contended on his behalf that he has falsely been roped in; that he has been attributed injury only to the complainant; that he has not been attributed any injury to the deceased and hence the question of his vicarious liability for his murder is to be determined at the time of trial; that he repeated no injury even to the complainant or caused to anyone else; that their side has also received injuries during the incident and they have advanced cross-version before the police but the same was not properly attended to by the police; that due to their cross- version, it is yet to be determined that who was aggressor or who was aggressed upon; that he as per his School Leaving Certificate was less than 13 years of age at the time of the alleged incident and hence his case ultimately is to be tried by the Juvenile Court; that he is behind the bars since his arrest; and that he is previous non-convict.
6. Conversely the learned counsel for the State assisted by the learned counsel for the complainant has opposed the petition on the ground that he is named in the F.I.R.; that he caused Chhuri blow to complainant hitting on the left side of his head; that weapon of offence has been recovered from him; that he has facilitated his co-accused Sakhi Muhammad in the commission of Qatl-e-Amd of deceased Younus and so he is vicariously liable for the same; that he according to the police record is aged about 18/19 years; and that the offence is heinous in nature.
7. I have carefully considered the submissions made by the learned counsel for the parties with the help of available record.
8. Allegedly he has caused injury with Chhuri to the complainant on the left side of his head. He did not repeat him injury. He had been attributed no injury to the deceased. Admittedly, the cross- version from their side has been brought forth. The same did not find favor with the police.
However, the question of his vicarious liability for the Qatl-e-Amd of deceased Younus is to be seen at the time of trial. Due to the advancement of cross-version from their side, it is also yet to be seen that who was aggressor and who was aggressed upon. Hence, the case against him calls for further inquiry into his guilt. The same, therefore, is covered under subsection (2) of section 497, Cr.P.C. Besides than this, he as per his School Leaving Certificate was born on 16-4-1990. He thus at the time of occurrence was less than 13 years of age. The police in their record have statedly mentioned his age as 18/19 years. Such assessment by police is tentative in nature. It is never exact.
However, School Leaving Certificate is more preferable than assessment of police as regards the age. Hence, 1n view of his said age i,e, less than 13 years at the time of alleged incident, the first proviso to section 497(1) is also attracted to his case.
9. He is stated to be behind the bars since his arrest and previous non-convict.
10. In these circumstances, I find him entitled to bail. The petition, therefore, is accepted and he is admitted to bail provided he furnishes bail Bond in the sum of Rs,50, 000 (Rupees fifty thousand) with one surety in the like amount to the satisfaction of the learned Sessions Judge, Pakpattan Sharif.
11. It is made clear here that any observation made above shall not influence the mind of the trial Court.