2025 Y L R 2239
[Balochistan]
Before Shaukat Ali Rakhshani, J
MUHAMMAD AFZAL ---Applicant
Versus
The STATE--- Respondent
Criminal Bail Application No. (L)08 of 2025, decided on 24th March, 2025.
(a) Criminal Procedure Code (V of 1898) ---
----S. 497(2) ---Penal Code (XLV of 1860), Ss. 302, 324 & 34--- Qatl-i-amd, attempt to
commit qatl -i-amd, common intention ---Bail, grant of ---Further inquiry ---Allegations
against the applicant -accused were that he along with his co- accused committed murder of
the brother of complainant by firing and also caused firearm injuries to the complainant
and his father ---Applicant had been indicted for the murder of deceased along with his
brother(proclaimed offender) and f ather, while sharing common intention---Admittedly, the
applicant had only been attributed the role of firing at the instruction of his father, but at the same breathe, it had been stated that no fire could be made probably due to malfunction ---Forensic Science Laboratory Report placed on record demonstrated that the
pistol was in working condition, which prima facie negated the stance of the prosecution that the pistol did not fire ---Above all, in order to ascertain and determine the common
intention shared by the applicant, at this stage, it would be difficult not only for the trial Court, but for the High Court as well, unless trial was concluded and final verdict was rendered, thus in view of the above, the case of the applicant squared within the ambit of further inquiry as contemplated under clause (2) of S.497 of Cr.P.C ---Co-accused/father of
the applicant had been admitted to bail by the High Court, who had been attributed the role of lalkara, instigation and abetment, whose case was obviously distinguishable ---As far as
abscondence of the applicant was concerned, it might be a relevant factor, while rendering the final judgment, but at this stage, abscondence could not be a sole reason for refusal of concession of bail, unless there were reasonable grounds to believe that the accused had committed an offence ---Thus,mere abscondence could not be made the ground to discard
the relief sought for as disappearance of a person after the occurrence was natural to avoid humiliation by his arrest and to avoid expected torture at the hands of police personnel ---
Bail application was allowed, in circustances.
2021 SCMR 540; 2021 MLD 1720; 2024 SCMR 476 and PLD 1967 SC 340 ref.
Ehsan -ul-Haq alias Shani v. The State 2017 SCMR 114 and Akhtar v. Khwas Khan
2024 SCMR 476 rel.
(b) Criminal Procedure Code (V of 1898) ---
----S. 497---Bail ---Observations of the Court ---Scope ---Observations made in bail
orders are tentative in nature, which shall not prejudice the merits of the case at the trial.
Hafeezullah Durrani for Applicant.
Syed Ayaz Zahoor and Muhammad Sadiq Khan Kakar for the Complainant.
Ms. Amna Hashmi, District Public Prosecutor ("DPP") for the State.
Date of hearing: 17th March, 2025.
ORDER
SHAUKAT ALI RAKHSHANI, J .---This order of mine, intends to dispose of the
captioned bail application put in by applicant Muhammad Afzal, seeking bail in the case vide
FIR No.10 of 2023 dated 09.07.2023 for the offences punishable under sections 302, 324 and 34 of the Pakistan Penal Code, 1860 ("P.P.C.") registered with Levies Station Saddar Bori, Loralai.
2. Briefly stated, the facts of the case are that complainant Gul Muhammad got lodged
the FIR ibid, averring there in that on 09.07.2023, he along with his father Abdul Hakeem and brother Jamal Khan were working in their fields; when at about 11:30 am, accused persons Najeebullah, Musa Khan and applicant Muhammad Afzal duly armed with pistol came, where accused Musa Khan made lalkara, directing his sons Najeebullah and Muhammad Afzal to kill them, thus applicant Muhammad Afzal made fire, but due to fault in the pistol, it did not triggered; whereafter co -accused Najeebullah fired at them, whereby all
of them sustained fire arms injuries, whereas his brother Jamal Khan succumbed on the spot. According to the complainant, after hearing fire shots, Abdul Mateen and Khair Bakhsh came on the spot, whereafter the accused persons made their escape good.
3. Imperative to add here that co -accused Musa Khan was granted bail by this Court vide
order dated 05.12.2023, whereas initially applicant Muhammad Afzal and co- accused
Najeebullah remained away from the course of justice, henceforth, they were declared proclaimed offenders.
Subsequently, applicant Muhammad Afzal surrendered before the court, who was
granted protective bail vide order dated 29.08.2024, whereafter he surrendered and filed pre -
arrest bail application before learned Sessions Judge, Loralai, which was rejected vide order dated 02.10.2024, thus the applicant filed post arrest bail application before learned
Additional Sessions Judge, Loralai, however, it also culminated into dismissal vide order dated 11.01.2025, hence this bail application.
4. Learned counsel for the applicant inter alia contended that the applicant has been
implicated in the instant case with ulterior motives and no injury has been caused by the applicant to the complainant, his brother or father and that the applicant has been dragged into the instant case on the basis of previous enmity between the parties over a land dispute. He urged that except the complainant, there is no eyewitness of the occurrence, making the case of the applicant one of further inquiry, but the Trial Court has failed to consider such aspect of matter, thus his case falls within the purview of clause (2) of section 497 of the Criminal Procedure Code, 1898 ("Cr.P.C."), which entitles the applicant for the concession of the bail. He urged that coaccused Musa Khan has been granted bail, as such as per rule of consistency, the applicant is also entitled for bail. He relied upon the judgments reported as 2021 SCMR 540, 2021 MLD 1720 and 2024 SCMR 476.
On the other hand, learned DPP and learned counsel for the complainant vigorously
resisted the bail application and argued that the prosecution has brought sufficient evidence on record to involve the accused -applicant in the instant case, which fact has fittingly been
adjudicated by the Trial Court, while rejecting his bail application as his case falls within the prohibitory clause of section 497 of the Cr.P.C. They relied upon the judgment reported as PLD 1967 SC 340.
5. Heard. Record scanned cover to cover.
6. The applicant has been indicted for the murder of deceased Jamal Khan along with his
brother Najeebullah (proclaimed offender) and father Musa Khan, while sharing common intention. Admittedly, the applicant has only been attributed the role of firing at the instruction of his father namely Musa Khan, but at the same breathe, it has been stated that no fire could be made probably due to malfunction. The FSL report placed on record demonstrates that the pistol was in working condition, which prima facie ne gates the stance
of the prosecution that the pistol did not fire. Above all, in order to ascertain and determine the common intention shared by the applicant, I believe that at this stage, it would be difficult not only for the Trial Court, but for this Court as well, unless trial is concluded and final verdict is rendered, thus in view of the above, the case of the applicant squares within the ambit of further inquiry as contemplated under clause (2) of section 497 of Cr.P.C. To fortify the above view, I w ould like to refer to the judgments of the apex court rendered in
the cases of "Ehsan -ul-Haq alias Shani v. The State" (2017 SCMR 114) and "Akthar v.
Khwas Khan" (2024 SCMR 476).
7. The father of the applicant namely Musa Khan has been admitted to bail by this
Court vide order dated 05.12.2023, who had been attributed the role of lalkara, instigation
and abetment, whose case is obviously distinguishable.
8. As far as abscondence of the applicant is concerned, it may be a relevant factor, while
rendering the final judgment, but at this stage, abscondence cannot be a sole reason for refusal of concession of bail, unless there are reasonable grounds to believe that the accused had committed an offence, thus mere abscondence cannot be made the ground to discard the relief sought for as disappearance of a person after the occurrence is natural to avoid humiliation by his arrest and to avoid expected torture at the hands of police personnel. In this regard, reference can be made to the case of "Saad Zia v. The State" (2023 SCMR 1898).
9. For what has been discussed herein above, the application is allowed and
consequently, applicant Muhammad Afzal son of Musa Khan is admitted to bail in FIR No.10 of 2023, subject to furnishing surety in the sum of Rs.100,000/ -(One hundred
thousand) with PR bond of like amount to the satisfaction of the Additional Registrar of this
Court or Trial Court.
The observations made hereinabove are tentative in nature, which shall not prejudice
merits of the case at the trial.
JK/52/Bal. Application allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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