PLJ 2021 Cr.C. (Lahore) 238
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 302, 311 & 34--Post arrest bail, grant of--Allegation of--Committing murder--Nominated in FIR--Matter of further inquiry--Question of vicarious liability--Determination at the time of trial and not at the time of bail--It is settled principle of law that question of vicarious liability can be determined at the time of trail and not at the time of bail--It is also well settled that ipsi dixit of police is no binding upon Court and even for purpose of bail, law is not to be stretched in favour of the prosecution--Petition accepted pre-arrest bail allowed.
[Pp. 239] A & B
2009 YLR 1076, 2011 SCMR 161 ref.
M/s. Naila Mushtaq Ahmed Dhoon and Mushtaq Ahmed Dhoon, Advocates for Petitioner.
Mr. Ikraam Ullah Khan Niazi, DPG for State.
Date of hearing: 14.10.2019.
PLJ 2021 Cr.C. (Lahore) 238
Present: Sardar Muhammad Sarfraz Dogar, J.
versus
STATE etc--Respondents
Crl. Misc No. 57628-B of 2019, decided on 14.10.2019.
Order
Through this petition, the petitioner seeks post-arrest bail
in case FIR No. 173/2019, dated 05.08.2019 registered under
Sections 302, 311, 34, PPC, at Police Station Harnoli, District Mianwali.
2. As per FIR, the prosecution version is that on 05.08.2019, at 09:30 a.m., the complainant Mushtaq Ahmed ASI alongwith police party while performing his patrolling and other misc. official duties reached near the house of the petitioner and heard hues and cries from inside the house and then witnessed the petitioner alongwith his co-accused holding feet of his deceased sister Mst. Rimsha Bibi and the co-accused, Muhammad Shahzad, father of the deceased, while raising lalkara to kill her, whereas, the co-accused Wasim Shahzad was committing murder of said Mst. Rimsha Bibi while making successive hatchet blows.
3. Arguments heard, record perused.
4. Perusal of record transpires that although the petitioner is nominated in a promptly lodged FIR with a role of holding the feet of
the deceased Mst. Rimsha Bibi, but no specific injury or overt act is attributed to him. It is yet to be determined whether the co-accused acted in compliance of said lalkara, by the learned trial Court after recording the evidence. It is settled principle of law that question of vicarious liability can be determined at the time of trial and not at the time of bail. Guidance is sought from "Khan Sardar and another v. The State and another" (2009 YLR 1076). As regards contention of learned Law Officer that the petitioner has been declared guilty during investigation, suffice to pay that it is well settled that ipsi dixit of police is no binding upon the Court and even for the purpose of bail, law is not to be stretched in favour of the prosecution. Guidance is sought from "Abid Ali alias Ali v. The State" (2011 SCMR 161).
6. The petitioner was arrested in this case on 19.08.2019 and since then he had been in custody. Further incarceration of petitioner would not serve any useful purpose. Therefore, the petitioner is entitled to the concession of post arrest bail.
7. For the above reasons, this petition is accepted and petitioner is allowed post-arrest bail subject to his furnishing bail bonds in the sum of Rs. 2,00,000/- with two sureties each in the like amount to the satisfaction of learned trial Court.
8. It is, however, clarified that the observations made hereinabove are tentative in nature, and strictly confined to the disposal of this bail petition.
(Z.A.S.) Bail allowed
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