SHER ABBAS and another vs STATE
This is a criminal petition seeking post-arrest bail in case FIR No. 446/04 registered under Sections 324, 337-D, 148, 149, 337-F(i), (ii), and 34 of the Pakistan Penal Code 1860 at Police Station City Lodhran. The core legal question revolves around whether the petitioners are entitled to post-arrest bail considering the roles attributed to them, the discrepancy between the medical and ocular versions, the rule of consistency, and whether the offences fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898. The Lahore High Court held that the petitioners are entitled to post-arrest bail as their offences do not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898, one petitioner was declared innocent by the police, and their case calls for further inquiry under Section 497(2). The key principles laid down include the application of the rule of consistency when a co-accused is granted bail, the evaluation of tentative assessment regarding roles and injuries not falling within the prohibitory clause, and the significance of a petitioner being declared innocent during police investigation.
- Whether an accused person whose case falls outside the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898 is entitled to bail as a matter of right?
- Does the fact that an accused has been declared innocent by the police warrant the grant of post-arrest bail?
- Can the rule of consistency be applied to grant bail to petitioners when a co-accused with similar role attribution has been released on bail?
- Whether discrepancy between ocular and medical versions makes the case one of further inquiry under Section 497 of the Code of Criminal Procedure 1898?
- Section 324, Pakistan Penal Code 1860
- Section 337-D, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 337-F(i), Pakistan Penal Code 1860
- Section 337-F(ii), Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
1. Through this petition, the petitioners seek post-arrest bail in case FIR No, 446/04 dated 24.11.2004 registered under Sections 324/337-D/148/ 149/337-F(i), (ii)/34 PPC with Police Station City Lodhran, Distt. Lodhran.
2. 2.Brief facts of the case are that on the complaint of Haji Muhammad a FIR was registered, in which, it is alleged that Petitioner No, 1, Sher Abbas armed with pistol, while Petitioner No, 2, Muhammad Hussain armed with Chhura, while co-accused Fida Hussain Pehlwan armed with Chhura, Nazeer Pehlwan armed with Chhura and Nazeer Ahmad armed with Pistol injured the complainant and his nephew.
3. 3.It is contended by the learned counsel for the petitioners that role attributed to Petitioner No, 1 is that he caught hold of the complainant and threatened to kill him if he resisted in any manner. The other co-accused caused injuries to the complainant and his nephew. Similarly, the role attributed to the Petitioner No, 2 is that he gave Chhura blow, which hit on the left hand of the complainant. It is further argued that Petitioner No, 1, Sher Abbas is minor of age 13 years, no injury is attributed to him. The Petitioner No, 2, Muhammad Hussain, who is stated to be armed with Chhura is alleged to have caused injury on the left hand of the injured/complainant. He inflicted only one blow and offence was not repeated by him. He has been declared innocent by the police. The petitioners have been falsely involved in this case. No major role is attributed to them. There is conflict in the medical and the ocular version of the case. The co-accused, Shehbaz has been released on bail and under the rules of consistency the petitioners are entitled to grant bail.
4. 4.Learned counsel for the State argues that, as per, the investigation a Chhuri was recovered from the Sher Abbas, accused by the police. He further states that according to his own version he is of 19 years of age. Although Muhammad Hussain, Petitioner No, 2 had been declared innocent by the police, he caused injuries on the left hand of the complainant in furtherance of common intention to kill the complainant.
5. 5.I have heard the learned counsel for the parties and perused the record.
6. 6.As per the FIR, Petitioner No, 1, Sher Abbas was stated to be armed with pistol and the only role attributed to him that he was blocking the outside door of the room and caught-hold of the complainant facilitating the others to cause injuries. He claims to be 13 years of age. Strangely enough the police has not recovered any pistol from Sher Abbas, rather, a Chhuri has been recovered. None of the injuries was suffered by the complainant at the hand of other accused. His mere presence at the spot is not sufficient to hold him guilty for the offence committed by the other co-accused. Even otherwise, the co-accused Shehbaz has been released on bail. There is a mark difference between the ocular version and the medical version. As far as Muhammad Hussain, Petitioner No, 2 is concerned he has been declared innocent by the police and the injury attributed to him does not fall within the Prohibitory Clause of Section 497 Cr.P.C. The petitioners are no more required by the police nor are any recovery to be made from them. In this view of the matter, no fruitful purpose would be served by keeping the petitioners behind the bar. They have not committed any offence which falls within the Prohibitory Clause of Section 497 Cr.P.C. The case of the petitioners is that of further inquiry. Therefore, they are admitted to post arrest bail subject to their furnishing bail bonds in the sum of Rs, 50,000/-each with one surety each in the like amount to the satisfaction of learned trial Court.