Bakhat Gul vs The State

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

Criminal Miscellaneous No. 1208 of 2026 Bakhat Gull Vs.

The State and another

S. No. of Date of Order with signature of Judge and that of order/ order/ parties or counsel where necessary. proceedings Proceedings

28-8-2026. Mr. Mishkat Ullah Advocate for the Petitioner. Mr. Fateh Ullah Burki Advocate, for the Complainant.

Mr. Muhammad Waqas Haral, Deputy District Public Prosecutor.

Mr. Muhammad Ahmad SI with record.

SHAHRUKH ARJUMAND, J.: Through instant petition, the Petitioner, Bakhat Gull, seeks post- arrest bail in FIR No. 311 dated 01.12.2024, for offences under Sections 302/34 of the Pakistan Penal Code, 1860 (“PPC”) read with Section 13 of the Arms Ordinance (XX), 1965 registered at Police Station Phulgran, Islamabad,.

2.Briefly stated, the prosecution case, as reflected from the contents of FIR, is that Mst. Saleema (“Complainant”) moved an application to the S.H.O. Police Station Phulgran alleging therein that she is presently residing with her

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husband [Bakhtiar Khan] in Mohallah Banaras, village Uthal, Islamabad. On 01.12.2024 Complainant went with her husband to his sister, namely Bakht Zeba for inquiring regarding her health as she was sick. At about 06:20 p.m. they returned back to the house. On entering the premises, they saw that Khursheed, Shoaib and Bakht Gull (“Petitioner”) were present there. Khursheed made a fire shot from his pistol which hit Complainant’s husband and Shoaib threw a brick which hit the head of Complainant’s husband. Complainant’s husband got completely soaked in blood. Her husband was also tortured by the culprits. Petitioner was accompanying the co- accused. Complainant with the help of neighborers took her injured husband to Poly Clinic Hospital but he succumbed to the injuries on way. All three culprits murdered the Complainant’s husband. Hence, the criminal case was registered.

3.Learned counsel for the Petitioner contended that no active or participatory role is attributed to the Petitioner; that fatal acts of firing and brick- blow is attributed to co-accused; that no specific injury to deceased is allegedly caused by the Petitioner; that FIR is silent as to whether the Petitioner was armed or empty handed; that there is no material on record showing abetment, association or facilitation of the Petitioner with the co-accused; that mere allegation against the Petitioner is that he was present at the spot; and

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that the case is of further inquiry hence, the Petitioner is entitled to the concession of bail. The learned counsel, in support of his contentions, has relied upon Fayaz Khan vs. Mohsin Shah and another, 2026 SCMR 1076; Sahad vs. Mst. Afsheen and another, 2026 SCMR 220; Muhammad Qasim and others vs. The State and others, 2025 SCMR 880; Bashir Ahmed and others vs. The State and another, 2022 SCMR 1187; Gul Nawab vs. The State, 2022 SCMR 547; Chairman NAB vs. Nisar Ahmed Pathan and others, PLD 2022 SC 475; Mst. Asia Bibi vs. The State and others, PLD 2019 SC 64; Zaigham Ashraf vs. The State and others, 2016 SCMR 18; Ehsan Ullah vs. the State 2012 SCMR 1137; Manzoor Hussain and another vs. The State, 2011 SCMR 902.

4.Conversely, learned Deputy District Public Prosecutor and the learned counsel appearing for Complainant opposed the bail petition and submitted that the Petitioner/accused with proper planning along with co-accused committed murder of Bakhtiar Khan. It was argued that after committing crime the Petitioner went to Charsada and committed another murder of an innocent lady on the pretext of alleged illicit relations. They submitted that there is nexus between two crimes committed at different places; and that Petitioner/accused is vicariously liable for the murder of Bakhtiar Khan. They submitted that Petitioner/accused after occurrence remained absconder for sufficient period of time and

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therefore he is not entitled to the concession of bail.

5.Arguments heard. Record perused.

6.The allegation against Petitioner/accused is that he was accompanying the two other culprits at the time of occurrence. One of the co-accused, namely Khursheed caused fire arm injury while the other co-accused, namely Shoaib hit the husband of Complainant with brick on the head. No overt act has been attributed to Petitioner/accused by the Complainant for the commission of offence. Similarly he has not been named to be armed with any weapon. Questions whether Petitioner shared common intention with co-accused in commission of offence and that whether he is vicariously liable is to be adjudged by the Trial Court after recording of evidence.

7.Mere presence of Petitioner/accused at the spot without being attributed any overt act brings the case to his extent one of further inquiry. Reliance in this regard is placed upon Qurban Ali vs. The State and others, 2017 SCMR 279 wherein it was held:

“The petitioner Qurban has not been attributed any overt act during the occurrence except the role of raising lalkara. In the circumstances of the case, it is for the learned trial Court to determine, after recording evidence pro and contra, whether the petitioner is vicariously liable for the acts of his co-accused.”

Crl. Misc. No. 1208/2026.

Similar view has been taken in Manzoor Hussain and another vs. The State, 2011 SCMR 902.

8.The Petitioner/accused remained in physical custody but nothing incriminating was got recovered upon his pointation or disclosure. The Petitioner/accused remained absconder for one and half year however, it is by now well settled law that mere abscondence of an accused by itself is no ground to refuse bail to him if otherwise he is entitled to the said relief on merits. It is also trite law that disappearance of a person after the occurrence is natural if he is involved in a murder case rightly or wrongly and that mere abscondence is not a proof of guilt, hence, cannot be made sole ground to discard the relief of bail. Reliance is placed upon Mazhar Ali vs. The State, 2025 SCMR 318; Gul Nawab vs. The State, 2022 SCMR 547; Rasool Muhammad vs. Asal Muhammad, 1995

SCMR 1373.

9.As far as contention of prosecution regarding repetition of offence by the Petitioner/accused in District Charsada is concerned, it is now settled law that mere registration of FIRs is not a bar to remedy of bail. The Honorable Supreme Court in case of Muhammad Tanvir Vs. State, PLD 2017 Supreme Court 733has already provided guidance as follows:

”Even otherwise to ensure that the accused may not repeat the same offence, if released on bail, sufficient surety bonds shall be obtained through reliable sureties

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besides the legal position that repetition of the same offence would disentitle the accused to stay at large as bail granting order may be recalled in that event, therefore, such a ground should not be an absolute bar in the way of grant of bail”.

10.To curtail the liberty of a person is a serious step in law, therefore, the courts have to apply judicial mind with deep thought for reaching at a fair and proper conclusion albeit tentatively however, this exercise shall not to be carried out in vacuum or in a flimsy and casual manner as that will defeat the ends of justice because if the accused charged, is ultimately acquitted at the trial then no reparation or compensation can be awarded to him for the long incarceration, as the provisions of Criminal Procedure Code and the scheme of law on the subject do not provide for such arrangements to repair the loss, caused to an accused person, detaining him in Jail without just cause and reasonable ground. Therefore, extraordinary care and caution shall be exercised in the course of granting or refusing to grant bail to an accused person, charged for offence(s), punishable with capital punishment. The Courts are equally required to make tentative assessment with pure judicial approach of all the materials available on record, whether it goes in favour of the Prosecution or in favour of the defence before making a decision.

11.In the case of Amir vs. The State, PLD 1972 SC 277 it was held that, "for purposes of bail, law not to be stretched in favour of prosecution and

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benefit of doubt, if any arising, must go to accused even on bail stage". Similar view was taken in the case of Manzoor v. The State, PLD 1972 SC 81. These principles so laid down, are based on enunciation of law in interpreting the provision of section 497, Cr.P.C. and broader principle of justice.

12.For what has been discussed above, the Petitioner is entitled to the concession of bail under Section 497(2), Cr.P.C. as the prosecution has failed to attribute any specific overt act or effective role to him in the commission of alleged murder. Mere presence at the place of occurrence, without any allegation of causing injury, firing upon the deceased, or facilitating the commission of the offence, does not by itself furnish reasonable grounds for believing his guilt at this stage.

13.Resultantly, the instant petition is ALLOWED. The petitioner, Bakhat Gull, is admitted to post-arrest bail in FIR No. 311 dated 01.12.2024, for offences under Sections 302/34 PPC read with Section 13 of the Arms Ordinance (XX), 1965 registered at Police Station Phulgran, Islamabad Subject to his furnishing bail bonds in the sum of Rs.200,000/- (Rupees two hundred thousand only) with one surety in the like amount to the satisfaction of the learned Trial Court. The petitioner shall also be at liberty to furnish the surety amount in cash, subject to the satisfaction of the learned Trial Court.

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14.Before parting, it is clarified that the observations made hereinabove are tentative in nature, confined solely to the adjudication of the present post-arrest bail petition, and shall not prejudice either the prosecution or the defence at trial. Nothing observed herein shall be construed as an expression of opinion on the ultimate merits of the prosecution case, and the learned Trial Court shall remain uninfluenced by any observation made in this order.

(SHAHRUKH ARJUMAND)

JUDGE

APPROVED FOR REPORTING.

Tanveer Ahmed/*