DIL MURAD and anothers vs THE STATE
The present applicants sought post-arrest bail in crime No. 2 of 2001 registered under section 302 read with section 34 of the Pakistan Penal Code at Police Station Gaheja. According to the prosecution, the applicants were armed with lathis and hatchets while a co-accused allegedly fired the fatal gunshot resulting in the death of the deceased. The core legal question was whether the applicants, to whom no overt act of causing fatal injuries was attributed and whose vicarious liability required determination at trial, were entitled to bail under section 497(2) of the Code of Criminal Procedure. The Sindh High Court held that since the fatal injuries were attributed to the co-accused and the applicants' case fell within the purview of further inquiry, they were entitled to bail. The court laid down the principle that where no overt act is attributed to accused persons carrying non-fatal weapons and their vicarious liability is subject to further inquiry at trial, they make out a case for post-arrest bail.
- Whether an accused person armed with a non-fatal weapon to whom no overt act is attributed is entitled to post-arrest bail when the fatal injury is attributed to a co-accused?
- Does the question of vicarious liability under section 34 of the Pakistan Penal Code warrant further inquiry under section 497(2) of the Code of Criminal Procedure at the bail stage?
- Section 302, Pakistan Penal Code
- Section 34, Pakistan Penal Code
- Section 497(2), Code of Criminal Procedure 1898
ORDER
1. ' Present applicants are seeking bail in crime No,2 of 2001 registered with Police Station, Gaheja under section 302, QDO read with section 34, P.P.C. The applicants moved bail application before the trial Court, but without success, hence this bail application.
2. ' According to the prosecution story, the present applicants namely and respectively Dil Murad and Rustam alias Bajhi were carrying Lathi and hatchets and co-accused Wali Muhammad who is not before this Court has fired from his gun on deceased - Bilawal who thereafter died on receiving fire-arm injuries at the hands of co-accused Wali Muhammad.
3. ' Mr. Jai Jai Veshno, learned Advocate for the applicants has argued that the present applicants were duly armed with Lathi and hatchets and they have not used in the commission of offence and the fatal injures are attributed to co-accused Wali Muhammad who has used gun and fired from gun on deceased Bilawal and it is borne out from the post-mortem report and has contended that the intention of killing on the part of the applicants is the question which can be thrashed out at the time of trial and they are entitled to the concession of bail.
4. ' On the other hand Mr. Muhammad Ismail Bhutto, Additional A.-G. For the State after looking into particularly postmortem report has contended that the deceased has succumbed to injuries after sustaining fire-arm injuries which are attributed to co-accused Wali Muhammad and present applicants were found at the spot with Lathi and hatchets and the same have been recovered from their possession and has given no objection on the point that their vicarious liability is to be thrashed out by the trial Court.
5. ' I have considered the arguments advanced by the learned counsel for the parties at the bar and have examined the other material available on the record. Admittedly, the present applicants are alleged to have found at the spot with Lathi and hatchet and no over act is attributed to them.
6. Admittedly the fatal injuries are attributed to co-accused Wali Muhammad who fired from his gun on deceased Bilawal and the same injuries are borne out from post-mortem report which has been also examined by me and the matter of afore-named applicants requires further inquiry and their vicarious liability is to be seen by the trial Court and their case is falling within the purview of section 497 (2), Cr.P.C. Accordingly, they are granted bail in the sum of Rs, two lacs each with P.R.
7. Bond in the like amount to the satisfaction of trial Court.