ZULFIQAR vs THE STATE
The petitioner sought post-arrest bail in a case registered under sections 302, 148, and 149 of the Pakistan Penal Code 1860, arising from an incident involving the demolition of a watercourse resulting in a murder. The core legal question was whether the petitioner, to whom only a Lalkara and ineffective aerial firing were attributed and who claimed to be empty-handed during the dispute over land subject to a civil court status quo order, was entitled to further inquiry under section 497(2) of the Code of Criminal Procedure 1898. The court held that since no substantive injury was attributed to the petitioner, his vicarious liability warranted further inquiry at trial, and he had spent significant time behind bars. The court accepted the bail petition, establishing that where complicity involves only unverified vicarious liability and supporting material indicates further inquiry, bail should be granted.
- Whether a petitioner assigned only a Lalkara and ineffective aerial firing is entitled to post-arrest bail for further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Does the existence of a civil court status quo order regarding the disputed land support a case for further inquiry in a criminal bail petition?
- Section 302, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
Zulfiqar the petitioner has sought for after arrest bail in case F.I.R. No.163 dated 16-7-2002 under sections 302/148/149, P.P.C. Registered with Police Station Qabula Sharif, Tehsil Arifwala, District Pakpattan Sharif.
2. Briefly the prosecution case as per F.I.R. Is that on 15-7-2002 at about 7-00 p.m. Zulfiqar (the present petitioner) armed with rifle, Razzaq with rifle, Mumtaz Ahmad with 222 bore rifle, Muhammad Rukhsar with 12 bore gun,, and Shafqat with Sota, in prosecution of the common object of the unlawful assembly formed by them started demolishing the Khal (watercourse) dug out by the complainant's side. He (complainant), his brother Abdul Ghaffar, Hafiz Shah Muhammad and Rashid Khan resident of the village came at the spot and Abdul Ghaffar his brother stopped them from doing so. Thereupon, Zulfiqar Ali raised Lalkara that they may be taught lesson for making watercourse/Khal on which Razzaq fired straight shot at Abdul Ghaffar hitting on his left armpit. He fell down. Thereupon Mumtaz Ahmad with rifle fired at him hitting on his left buttock. Shafqat inflicted two Sota blows to Hafiz Shah Muhammad hitting on his upper right eye and left thigh.
Zulfiqar (the present petitioner) and Muhammad Rukhsar remained firing in the air and raising Lalkara that whosoever came near them would be dealt with in the same way as was Abdul Ghaffar. On the report of fires, Faiz Ahmad and others residents of the village were attracted to the spot, who witnessed the occurrence. Abdul Ghaffar succumbed to his injuries at the spot.
3. The motive behind the occurrence is that the complainant party was making watercourse in the land of the petitioner's side and on the grudge over the same, they have committed the above act.
4. It has been contended on his behalf that he has falsely been roped in; that mere Lalkara is ascribed to him qua the commission of crime and no injury to anyone; that in the investigation it has been found that he was empty-handed at the time of the occurrence that Javed Iqbal, his real brother had brought suit for declaration with permanent injunction against the complainant party and in the same status quo order has been passed/issued in their favour; and that he is behind the bars for the last about five months and is previous non-convict.
5. Conversely the learned counsel for the State has opposed the petition on the ground that he is named in the F.I.R.; that he has not only raised Lalkara but also made firing in the air.
6. I have carefully considered the submissions made by the learned counsel for the parties with the help of available record.
7. The fact remains that Lalkara and ineffective firing is attributed to him in the commission of crime alleged. He has been attributed injury to none.
8. Learned counsel for the petitioner has placed on record the certified copy of order dated 13-7- 2002 recorded by learned Civil Judge 1 Class, Pakparttan Sharif in the suit for declaration with permanent injunction titled Javed Iqbal v. Province of Punjab and others. Javed Iqbal is said to be brother of the petitioner. In the said suit, the learned Civil Judge has issued order to maintain status quo in respect of the suit-land.
9. Besides than this, in the case the Diary No.17 has been recorded by Naveed Zaman Kiani, S.- I./S.H.O., Police Station Ahmad Yar on 17-7-2002. In the same, it has been mentioned that during the investigation it transpired that petitioner was empty-handed at the time of occurrence and he has shown stay order to the complainant party but they resorted to firing and he ran away and hid himself in crop.
10. The question of his vicarious liability is to be gone into at the trial. Thus his case is covered under subsection (2) of section 497, Cr.P.C. Calling for further inquiry into his guilt. He is behind the bars for the last about six months.
11. In these circumstances, I find him entitled to bail. I, therefore, accept this petition and he is admitted to bail provided he furnishes bail bonds in the sum of Rs.50,000 (Rupees fifty thousand) with two sureties each in the like amount to the satisfaction of the learned Sessions Judge/trial Court.