PLJ 2023 Cr.C. (Note) 218
[Lahore High Court, Multan Bench]
Present: Sadiq Mahmud Khurram, J.
MUHAMMAD WAQAR KHAN--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 3101-B of 2023, decided on 30.5.2023.
Criminal Procedure Code, 1898 (V of 1898)--
---S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 302/34--Hold the deceased--Post arrest bail--grant of--Petitioner held the deceased--Medical Officer who conducted the post mortem examination of the dead body of the deceased did not observe any sign that the deceased had been held by his legs or feet prior to his death--The question whether the petitioner is vicariously liable for the offences committed can only be determined by the trial Court after holding of the trial--Motive alone cannot be considered sufficient for proving the fact in issue--The investigation of the case is complete and the petitioner is no more required for further investigation--Petitioner is admitted to post-arrest bail. [Para 4] A, B, C & D
1995 SCMR 310; 1978 SCMR 357; PLD 1985 SC 182;
2019 SCMR 1914 ref.
Khawaja Qaisar Butt, Advocate for Petitioner.
Mr. Muhammad Bilal Butt, Advocate for Complainant/ Respondent No. 2.
Malik Riaz Ahmad Saghla, Additional Prosecutor General for State.
Date of hearing: 30.5.2023.
Order
Through the instant petition filed under Section 497, Cr.P.C., the petitioner namely Muhammad Waqar Khan seeks post-arrest bail in the case FIR No. 111 of 2023, dated 18.01.2023, registered in respect of offences under Sections 302 and 34, P.P.C. at the Police Station Gulgasht, District Multan.
2. The allegations as against the petitioner namely Muhammad Waqar Khan, culled from the evidentiary material produced before the Court, are that the petitioner namely Muhammad Waqar Khan held the deceased, namely Jabbar Khan, the husband of the complainant, whereas Shahbaz Khan, the co-accused of the petitioner, while armed with a pistol, fired at Jabbar Khan (deceased), causing his death.
3. The arguments advanced by the learned counsel for the petitioner, the learned counsel for the complainant/Respondent No. 2, the learned Additional Prosecutor General have been heard and the record of this case has been perused with their Able assistance.
4. This is a bail after arrest and only tentative assessment is permissible at this stage. The allegations as against the petitioner namely Muhammad Waqar Khan are that the petitioner namely Muhammad Waqar Khan held the deceased, namely Jabbar Khan, the husband of the complainant, whereas Shahbaz Khan, the co-accused of the petitioner, while armed with a pistol, fired at Jabbar Khan (deceased), causing his death. The Medical Officer who conducted the post mortem examination of the dead body of the deceased did not observe any sign that the deceased had been held by his legs or feet prior to his death. In this manner, the allegation against the petitioner is not supported by any medical evidence. Such type of allegations as levelled against the petitioner namely. Muhammad Waqar Khan are very easy to level but very difficult to prove. Prima-facie when the petitioner did not make any attempt to cause any injury to Jabbar Khan (deceased), his role becomes distinguishable from Shahbaz Khan, the co-accused of the petitioner, who while armed with a pistol, fired at Jabbar Khan (deceased), causing his death. This narrative of the complainant as given in the F.I.R has to be taken with a pinch of salt and has to be considered and evaluated, while keeping in mind that it may not be completely true or accurate. It is an admitted fact that the petitioner namely Muhammad Waqar Khan is related to his co-accused. In that milieu spreading the net wide by the complainant party so as to falsely entangle the petitioner in the present criminal case appears to be a possibility which cannot safely be ruled out of the consideration at this stage. I am in agreement with the learned Additional Prosecutor General that deeper appreciation of the evidence at bail stage is not warranted under the law, but it is equally true that a bail application cannot be decided in a vacuum. Prima facie there are reasonable grounds to believe that the case of the petitioner is requiring further inquiry and that it is yet to be seen whether he facilitated the main accused during the commission of the offences. It would be for the learned trial Court to determine if the co-accused of the petitioner needed the facilitation of the petitioner at the time of commission of the offences. The question whether the petitioner is vicariously liable for the offences committed can only be determined by the learned trial Court after holding of the trial. Reliance is placed on the case of “Mehmood Akhtar and another vs. Haji Nazir Ahmad and 4 others” (1995 SCMR 310) wherein the August Supreme Court of Pakistan held as under:-
“The learned counsel for the petitioner (C.P.105/94) has relied on the case Basharat Hussain v. Ghulam Hussain etc. (1978 SCMR 357) wherein this Court refused to interfere with the order of High Court granting bail to accused person in a case who had held the deceased to facilitate the murder by the co-accused. While refusing leave to appeal in the above case, this Court? Made the following observations:-
“It is quite clear from the F.I.R. that Respondent No. 1, was alleged to have held the deceased when his son Abdul Qayyum hit the deceased on the head. Respondent No. 1, is therefore, charged with facilitating the murder of the deceased. It has been rightly pointed out by the High Court that this question requires further enquiry, and the petitioner was entitled to bail.”
The above quoted observations fully apply to the circumstances of the present case and we, accordingly convert Petition No. 105 of 1994 into appeal and also the same and admit the appellant Rekhmat Hussain to bail in the sum of Rs. 25.000 with one surety in the like amount to the satisfaction of trial Court.”
Reliance is also placed on the case of “Basharat Hussain v Ghulam Hussain etc” (1978 SCMR 357) wherein the august Supreme Court of Pakistan refused to interfere with the order of this Court granting bail to accused person in a case who had held the deceased to facilitate the murder by the co accused. While refusing leave to appeal in the above case, the august Supreme Court of Pakistan made the following observations:
“It is quite clear from the F.I.R. that Respondent No. 1, was alleged to have held the deceased when his son Abdul Qayyum hit the deceased on the head. Respondent No. 1, is therefore, charged with facilitating the murder of the deceased. It has been rightly pointed out by the High Court that this question requires further enquiry, and the petitioner was entitled to bail.”
With regard to the detail of the motive available with the petitioner for murdering the deceased, suffice is to observe that motive alone cannot be considered sufficient for proving the fact in issue. Adverting to the main contention of the learned Additional Prosecutor General that the case does not fall within the ambit of the Section 497(2), Cr.P.C., which being without substance, cannot be taken into consideration. It is well settled law by now that “where there is no prima facie case against the petitioner and evidence on record is vague and sketchy and the Court considers it necessary that further inquiry may be held in the matter, it may enlarge the petitioner on bail.”. Reliance can be placed on the case of “Muhammad Sadique v. State” (PLD 1985 SC 182). This Court has no hesitation while holding that the case of petitioner falls within the ambit of further inquiry as, at the moment, sufficient incriminating material is lacking connecting the petitioner with the commission of alleged offences. The august Supreme Court of Pakistan in the case of “Husnain Mustafa vs. The State and another” (2019 SCMR 1914) has held as under:
“Horrors of an heinous crime cannot impede release of accused on bail, if otherwise his guilt called for further probe nor bail can be withheld as a strategy for punishment.”
The petitioner is a previous non-convict and has never been involved in any other case. The petitioner namely Muhammad Waqar Khan was arrested in the case on 23.03.2023 but the trial has not seen any fruitful progress as yet. The investigation of the case is complete and the petitioner is no more required for further investigation, therefore, his further incarceration would not serve any useful purpose.
5. For what has been discussed above, the petition in hand is accepted and the petitioner namely Muhammad Waqar Khan is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs. 100,000/-(rupees one hundred thousand only), with two sureties, each in the like amount, to the satisfaction of the learned trial Court.
6. It is clarified that the observations enumerated are absolutely tentative in nature and restricted only to the extent of this particular petition, having no nexus and relevance with the trial, which shall be concluded quite independently and purely on merit.
(K.Q.B.) Bail allowed
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