DADAN and 2 others Applicants vs THE STATE
This matter concerns a post-arrest bail application filed by three applicants accused of murder under Section 302 read with Section 149 of the Pakistan Penal Code 1860. The prosecution alleged that the applicants, along with others, boarded a bus transporting an under-trial prisoner (the deceased) and opened fire, resulting in his death. The applicants argued that no overt act of causing injury to the deceased was attributed to them, noting that the fatal shots were fired by co-accused, and that they were only accused of resisting the police, for which they had already been granted bail in a separate case. The State opposed the bail, citing vicarious liability. The Court held that since no direct allegation of firing at the deceased existed against the applicants and no weapons were recovered from them, their case for bail was made out. Relying on established precedent, the Court determined that the question of vicarious liability is a matter to be decided at trial, and granted bail to the applicants subject to furnishing surety.
- Does the absence of an overt act causing injury to the deceased entitle an accused to bail in a murder case?
- Is the question of vicarious liability under Section 149 of the Pakistan Penal Code 1860 a matter to be determined at the trial stage rather than at the bail stage?
- Can bail be granted when the primary allegation against the accused is limited to resisting police rather than the fatal act itself?
- Section 302, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 353, Pakistan Penal Code 1860
ORDER
' The applicants alongwith two others are being tried in a case arising out of Crime No,14 of 2003 of Police Station Sakrand punishable under section 302 read with 149, P.P.C.
2. It is the case of prosecution that deceased Azizullah, was an under trial prisoner and was being taken by the police alongwith another UTP in a Bus for their production before the Court.
Complainant Habibullah brother of deceased Azizullah and his nephews Raza Muhammad and Hidayatullah were travelling in the same bus. It is alleged that accused Qadir Bux, Shakal, Karim Bux, Dadan and Zulfiqar also boarded the same bus and on the way Karim Bux took out a country made pistol from the fold of his trousers and fired at Azizullah which hit him on his face. A police constable grappled with him and caught hold of him. Accused Qadar Bux also took out a pistol and fired at Azizullah which too hit him. It is alleged that the applicants also took out pistols and tried to fire at constable. However, the driver stopped the bus and the applicants managed to escape.
Accused Qadar Bux also ran away and only Karim Bux was captured on the spot. Azizullah succumbed to injuries in the hospital. The said police constable lodged another F.I.R. (Crime No,15 of 2003) at the same police station for an offence punishable under sections 353 read with 149, P.P.C.
3. I have heard Mr. Muhammad Sharif Siyal, learned counsel for the applicants and Mr. Anwar H.
Ansari learned State Counsel.
4. Mr. Siyal contended that the only allegation against the applicants is that they resisted the police for which a separate case has been registered wherein they have been granted bail by the lower Court and as far their role in the instant incident is concerned no overt act of causing any injury to the deceased is ascribed to them. He submitted that only two empties of .12 bore pistol were secured from the seem which can at the most be attributed to the other accused and not the applicants. He further urged that the other UTP Qabool has not supported the case and there is no recovery of the crime weapons from the present applicants. He relied on Attaullah and 3 others v.
The State 1999 SCM R 1320 and Faraz Akram v. The State 1999 SCM R 1360 in support of his contentions.
5. Mr. Anwar H. Ansari, learned State Counsel vehemently opposed the bail on the ground that the applicants resisted the police which prima facie establishes their vicarious liability towards the commission of offence. He submitted that the police has also fired from their SMGs, and six empties of SMG have been secured from the place of incident i,e, to say the Bus.
6. I have considered all these contentions in the light of facts and circumstances of the case and the authorities cited at the bar. Instantly, the main allegation against the applicants is that they resisted the police but it is admitted in the F.I.R. That the police succeeded in capturing accused Karim Bux who had made the first fire and Qadar Bux had also made a fire and only thereafter these applicants had put in resistance. There is no direct allegation that the applicants attempted to make a fire at the deceased. There is also no recovery of any crime weapon from them. In the case 1999 SCMR1360 bail was granted on the grounds' that no overt act was allegedly ascribed to the accused except of ineffective firing, and the fatal shot was attributed to the co-accused and that the question of vicarious liability in the circumstances was to be determined' at the trial. The authorities cited by the, learned, counsel in this eventuality lend full support to the bail plea.
7. In view of the above, the application is allowed. The applicants be released on bail on furnishing surety in the sum of Rs,3,00,000 (Rupees three lacs) each and executing P.R. Bond in the like amount to the satisfaction of the trial Court. The application stands disposed of.