KHAIR MUHAMMAD vs THE STATE
The applicant sought pre-arrest bail in Crime No. 6 of 2003 registered at Police Station Tando Rahim Khan under sections 302, 324, 147, 148, 149, and 504 of the Pakistan Penal Code. The core legal question was whether the applicant, who was attributed a danda without any specific overt act and whose side had lodged a prior counter-F.I.R. regarding suppressed injuries, was entitled to pre-arrest bail. The Sindh High Court held that the applicant was entitled to pre-arrest bail as no overt act was attributed to him, the question of vicarious liability required trial determination, the cross-version and suppression of injuries needed further inquiry, and his arrest appeared mala fide. The key principle laid down is that where an accused is assigned a generalized role with a weapon not put to use, and a plausible cross-version with suppressed injuries exists, a case for pre-arrest bail is made out on grounds of further inquiry and potential mala fide implication.
- Whether pre-arrest bail can be granted when no active overt act is attributed to the accused and he was armed with a danda that was not used?
- Does the existence of a prior counter-F.I.R. and suppression of injuries by the complainant party make out a case for further inquiry?
- Whether the question of vicarious liability under unlawful assembly can be resolved at the bail stage or is a matter for trial?
- Section 302, Pakistan Penal Code
- Section 324, Pakistan Penal Code
- Section 147, Pakistan Penal Code
- Section 148, Pakistan Penal Code
- Section 149, Pakistan Penal Code
- Section 504, Pakistan Penal Code
ORDER
1. ' Applicant Khair Muhammad seeks pre-arrest bail in Crime No.6 of 2003 registered at Police Station Tando Rahim Khan under sections 302, 324, 147, 148; 149 and 504, P.P.C.
2. ' Briefly the facts giving rise to this bail application are that one Abdul Sattar lodged F.I.R. On 26-9- 2003 stating therein that about . a week prior to the incident Khair Muhammad brought goods of his shop in a bus whereupon complainant party raised objection that he should not bring bus to their village as their womenfolks sitting in their houses would easily be visible from bus. Upon which, exchange of harsh words took place between the parties.
3. ' On 26-9-2003 early in the morning Muhammad Yaqoob and Basar had gone to Chhini on motorcycle with their personal work and came back at about 8-30 p.m. And stated that Khair Muhammad and Moharram had abused them on the way to village.
4. ' At about 9-30 a.m the complainant was in his house when he heard commotion near Primary School. He went running and saw that P.Ws. Basar, Yaqoob, Ghulam Hussain, Chuttal and Liaq were standing near school. Accused Mori, Khair Muhammad, Moharram, Bhai Khan and Talib came there. Out of whom Morio was armed with gun while rest of the accused were holding Dandas.
5. Accused Mono fired at complainant party which hit Ghulam Hussain on his head who fell down.
6. P.W. Chuttal was wounded by second fire. 'After that accused made their escape good. F.I.R. Was registered which was initially recorded under section 324, P.P.C. But later on injured died in the hospital and it was converted into 302, P.P.C. The case is pending trial in the Court of Sessions Judge, Dadu.
7. ' It is argued that present applicant was armed with Danda and no overt act has been attributed.
8. Accused party had also lodged F.I.R. Being Crime No.5 of 2003 of same police station. Accused Haji Muharram sustained injuries at the hands of complainant party: The said case is still pending investigation and the injuries on accused Haji Muharram have been suppressed by the complainant party. The F.I.R. Is delayed by about 13 hours and no plausible explanation has been furnished.
9. ' Miss Parvin Chachar, learned counsel appearing for the State has opposed the bail plea of accused.
10. The F.I.R. Of accused Haji Muharram is prior in time wherein complainant Abdul Sattar's nephews (sister sons) Chuttal, Bassar and Yaqoob are accused. Injuries to Haji Muharram have been suppressed in the F.I.R. No overt act has been attributed to the present applicant. He was allegedly armed with Danda which has not been used by him. Question of vicarious liability is yet to be established at the time of trial. For these reasons, the applicant appears to have been implicated due to the relationship of main accused and his arrest at the hands of police shall be mala fide and for ulterior motive.
11. ' He is granted pre-arrest bail in the sum of Rs.100,000 (Rupees one lac) and P.R. Bond in the like amount to the satisfaction of the Additional Registrar of this Court.