MASHOOQUE ALI KHOSO vs THE STATE
This is a criminal bail application before the Sindh High Court where the applicant, Mashooque Ali Khoso, sought post-arrest bail in a case involving offences under sections 302/34 and 337-H(ii) of the Pakistan Penal Code. The core legal question was whether the applicant, who was alleged to have fired in the air while his co-accused fired the fatal shot, was entitled to post-arrest bail on the ground of further inquiry regarding his constructive liability under section 34. The court held that since the applicant only fired in the air and had no intention to cause injury or death, his case fell within the scope of further inquiry, distinguishing it from cases involving house-trespass and constructive liability like section 460. Consequently, the bail application was allowed subject to furnishing surety. The key principle laid down is that an accused whose sole overt act is firing in the air, without causing any injury or sharing a direct murderous intent in the specific circumstances, makes out a case for further inquiry under section 497(2) of the Code of Criminal Procedure.
- Whether an accused who merely fires in the air during an altercation is entitled to post-arrest bail?
- Does firing in the air conclusively establish common intention for murder under section 34 of the Pakistan Penal Code 1860?
- Can the principle of constructive liability under section 460 of the Pakistan Penal Code 1860 be applied to a street altercation case where no house-trespass occurred?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 337-H(ii), Pakistan Penal Code 1860
- Section 460, Pakistan Penal Code 1860
ORDER
1. ' Applicant and others are facing their trial in the Court of 2nd Additional Sessions Judge, Hyderabad for an offence punishable under sections 302/34 and 337- H(ii), P.P.C.
2. ' It is alleged in the F.I.R. That an altercation had taken place earlier between the parties on using of the thoroughfare. On the day of incident Hanif Khoso, applicant Mashooq Ali and co-accused Ali Dino intercepted the complainant party. Hanif and Mashooq were armed with pistols while Ali Dino was empty-handed. Hanif fired from his pistol directly at Muhammad who was hit and he died on the spot. Applicant Mashooq Ali fired in the air. The matter was reported to police of Bulri Shah Karim Police Station on the same day. The applicant was arrested on 23-9-2001.
3. ' I have heard Syed Madad Ali Shah learned counsel for the applicant and Mr. Muhammad Azeem Panhwar learned State Counsel.
4. ' Syed Madad Ali Shah submitted that the role ascribed to the applicant Mashooq Ali manifestly demonstrates that he had no intention to kill Muhammad or cause any injury to him or to the witness as according to the case of prosecution he fired in the air, hence his guilt would call for further inquiry. He relied on 1999 SCMR 360, Muhammad Sadiq v. State 1996 SCM R 1654, Abdul. Aziz v. State 1996 SCM R 1693, Mumtaz Hussain v. State 1996 SCM R 1125, Sharbat v. State 2003 M LD 1191, Shafi Muhammad v. State 1999 PCr.LJ 890 in support of his contention.
5. 'Mr. Muhammad Azeem Panhwar earned State Counsel opposed the bail on the ground that the applicant had come armed with pistol and fired in the air, therefore, from his overt act is sharing is common intention can be proved.
6. ' I have considered all these contentions in the light of material available on record and the case cited above. The authorities 1996 SCM R 1654, 1990 PCr.LJ 1457 were considered in 2003 M LD 1191 wherein the law regarding the constructive liability was examined considering other Supreme Court precedent also. It is an admitted position that the applicant made fires only in the air which as argued by Syed Madad Ali Shah is sufficient to display his intention not to cause injury to any person. The authorities cited by him fully apply to the instant case. The learned State Counsel referred to Ghulam Nabi v. State 1996 SCM R 1023 and contended that in the cited case the accused armed with hatchet was refused bail by Honourable Supreme Court. On perusal of the cited judgment it is found that the three accused persons had trespassed into the house of complainant party during night hours and one of them had caused murder of an inmate of the house. I am conscious of this fact that section 460, P.P.C. Comes in play in such an incident and the constructive liability of companion of an accused is established by the above provision in the given circumstances. The principle laid down in the said authority, therefore, cannot be applied to the instant case, as this is not a case of Qatl-i-Amd during lurking house-trespass.
7. 'In view of the above discussion I am convinced that the applicant is entitled to bail, the application is accordingly allowed. The applicant be released on furnishing surety in the sum of Rs,3,00,000 and executing P.R. Bond in the like amount to the satisfaction of the trial Court.