PLJ 2024 Cr.C. (Note) 131
[Lahore High Court, Multan Bench]
Present: Sadiq Mahmud Khurram, J.
MUHAMMAD WAQAR--Petitioner
versus
STATE and another.--Respondents
Crl. Misc. No. 5969-B of 2023, decided on 10.10.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 302, 324, 337-H(2), 337-F(iii), 148, 149, 109--Injury to PW--Intention to kill--Bail, grant of--Petitioner alongwith his co-accused, attacked the complainant party and the petitioner while armed with a pistol, fired with the same hitting the injured witness--In order to ascertain whether reasonable grounds exist or not, the Court should confine itself to the material placed before it--The question of whether the petitioner is vicariously liable for the offences committed can only be determined by the Court after holding the trial--Evidence against the petitioner supporting the commission of offence made punishable u/S. 342, PPC--Section 324 of the, PPC, the intention of the petitioner to kill the injured witness of the case of the case is prima facie not available--Petitioner and his co-accused are related to each other and in that milieu spreading the net wider by the complainant party so as to falsely entangle the petitioner in the present criminal case appears to be a possibility that cannot safely be ruled out of the consideration--Petitioner was arrested and since then he is behind the bars--Petition in hand is accepted and the petitioner admitted to post-arrest bail. [Para 2 & 4] A, F, G, H, I, J
2014 SCMR 1502; 2000 SCMR 1854; 1996 SCMR 1125;
2017 SCMR 116 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Bail--Tentative assessment--A bail after arrest and only a tentative assessment of the evidentiary material produced before the Court is permissible at this stage--A Court considering a bail application has to tentatively look to the facts and circumstances of the case. [Para 4] B & C
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Bail--Reasonable grounds & Reason to believe--Reasonable grounds are not to be confused with mere allegations or suspicions nor with tested and proved evidence--The term “reason to believe” can be classified at a higher pedestal than mere suspicion and allegation. [Para 4] D
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Bail--Deeper appreciation of the evidence--A deeper appreciation of the evidence at the bail stage is not warranted under the law, but it is equally true that bail application cannot be decided in a vacuum. [Para 4] E
Khawaja Qaisar Butt, Advocate, for Petitioner.
Mr. Muhammad Rafique Dogar, Advocate for Complainant/ Respondent No. 2.
Mr. Muhammad Sadiq Rehman, Additional Prosecutor General for State.
Date of hearing: 10.10.2023.
Order
Through the instant petition filed under Section 497, Cr.P.C., the petitioner namely Muhammad Waqar seeks post-arrest bail in case F.I.R No. 519 of 2022, dated 12.11.2022. registered in respect of offences under Sections 302, 324, 337-H(2), 337-F(iii) 148,149 and 109, P.P.C. at Police Station Sahuka, District Vehari.
2. The allegations as against the petitioner namely Muhammad Waqar, culled from the evidentiary material available before the Court, are that he along with his co-accused, attacked the complainant party and the petitioner namely Muhammad Waqar, while armed with a pistol, fired with the same hitting Muhammad Ahmad, the injured witness witness of the case, on his left shoulder. It was further recorded in the F.I.R that Ali Nawab, the co-accused of the petitioner, fired with the gun carried by him hitting Muhammad Siddique (deceased), causing his death.
3. I have heard the learned counsel for the petitioner, the learned counsel appearing on behalf of the complainant/Respondent No. 2, the learned Additional Prosecutor General and have gone through the record of this case with their able assistance.
4 This is a bail after arrest and only a tentative assessment of the evidentiary material produced before the Court is permissible at this stage. A Court considering a bail application has to tentatively look to the facts and circumstances of the case and once it comes to the inference that no reasonable ground exists for believing that the accused has committed a non bailable offence, it has the discretion to release the accused on bail. In order to ascertain whether reasonable grounds exist or not, the Court should confine itself to the material placed before it by the prosecution to see whether some perceptible evidence is available against the accused, which if left unrebutted, may lead to inference of guilt. Reasonable grounds are not to be confused with mere allegations or suspicions nor with tested and proved evidence, which the law requires for a person’s conviction for an offence. The term “reason to believe” can be classified at a higher pedestal than mere suspicion and allegation. The allegations as against the petitioner namely Muhammad Waqar are that he along with his co-accused, attacked the complainant party and the petitioner namely Muhammad Waqar, while armed with a pistol, fired with the same hitting Muhammad Ahmad, the injured witness of the case, on his left shoulder. It was further recorded in the F.I.R that Ali Nawab, the co-accused of the petitioner, fired with the gun carried by him hitting Muhammad Siddique (deceased), causing his death. The perusal of the Medico Legal Examination Certificate of Muhammad Ahmad, the injured witness of the case, reveals that the Medical Officer observed an injury on the anterior side of the left shoulder of Muhammad Ahmad, the injured witness of the case and declared the same to be of the kind of “Jurh Ghayr-Jaifah Mutalahimah” made punishable under Section 337-F(iii), P.P.C. Prima-facie, when the petitioner namely Muhammad Waqar did not make any attempt to cause any injury to the deceased, his role becomes distinguishable from him who had caused injuries to the deceased. The injuries resulting in the death of the deceased are not attributed to having been caused by the petitioner, namely Muhammad Waqar. I am in agreement with the learned Additional Prosecutor General that a deeper appreciation of the evidence at the bail stage is not warranted under the law, but it is equally true that bail application cannot be decided in a vacuum. Prima facie there are reasonable grounds to believe that the case of the petitioner requires 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 needed the facilitation of the petitioner at the time of the commission of the offences. The question of whether the petitioner namely Muhammad Waqar is vicariously liable for the offences committed can only be determined by the learned trial Court after holding the trial. Reliance is placed on the cases of “Faqir Hussain alias Bali vs. The State and others” (2014 SCMR 1502), “Farzand Ali vs. Taj and two others” (2000 SCMR 1854), “Mumtaz Hussain and 5 others vs. The State” (1996 SCMR 1125) and Wajid Ali versus The State and another (2017 SCMR 116). The learned Additional Prosecutor General has argued that there was evidence against the petitioner namely Muhammad Waqar supporting the commission of offence made punishable under Section 324, PPC. Section 324 of the, PPC. Deals with an attempt to commit Qatl-i-Amd. An attempt as an indictable crime means an intentional act with a view to attain a definite end but which is not achieved because of circumstance, independent of the will of the offender who makes the attempt. In the instant case, the intention of the petitioner to kill Muhammad Ahmad, the injured Awitness of the case of the case is prima facie not available when the prosecution is yet to produce any evidence establishing that there were certain circumstances, independent of the will of the petitioner namely Muhammad Waqar, which prevented him from committing the Qatl-i-Amd of Muhammad Ahmad, the injured witness of the case. The petitioner and his co-accused are related to each other and in that milieu spreading the net wider by the complainant party so as to falsely entangle the petitioner in the present criminal case appears to be a possibility that cannot safely be ruled out of the consideration at this stage. For what has been discussed above, the case of the petitioner, namely Muhammad Waqar becomes one of further inquiry covered by sub-section (2) of Section 497, Cr.P.C. calling for further inquiry into the petitioner’s guilt. The petitioner namely Muhammad Waqar was arrested in this case on 25.01.2023 and since then he is behind the bars. The petitioner is not previously convicted. The investigation of this case has already been finalized, a report under Section 173, Cr.P.C. has been submitted and the physical custody of the petitioner is no longer required at this stage and his continued incarceration is not likely to serve any beneficial purpose.
5. In view of the above discussion, the petition in hand is accepted and the petitioner namely Muhammad Waqar is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of
Rs. 500,000/-(rupees five 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.
(M.A.B.) Petition accepted
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