DAWAR KHAN vs THE STATE
This matter concerns a bail application filed by the accused, Dawar Khan, seeking post-arrest bail in a case registered under Sections 353, 324, and 34 of the Pakistan Penal Code 1860. The applicant was charged with assaulting a police party and attempting to commit Qatl-e-Amd. The core legal question was whether the applicant was entitled to bail given the lack of injuries sustained by any party, the absence of recovered crime empties, and the fact that a co-accused had already been granted bail. The Court observed that the applicant had been incarcerated for over a year without the trial concluding, despite all witnesses being police personnel, indicating a lack of prosecution diligence. The Court held that the applicant was entitled to bail, emphasizing the rule of consistency, as the trial court had previously granted bail to a co-accused without distinguishing the applicant's role. The judgment establishes that the refusal of bail in violation of the rule of consistency, particularly when co-accused have been granted relief, constitutes an improper exercise of judicial discretion that causes unnecessary hardship.
- Does the rule of consistency apply when granting bail to co-accused persons?
- Is the absence of injuries and recovered crime empties a relevant factor in considering post-arrest bail for attempted murder?
- Can a trial court refuse bail to an accused when a co-accused has already been granted bail without distinguishing their respective roles?
- Section 353, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
1. ' MUHAMMAD MOOSA K. LEGHARI, J.--- The applicant is seeking bail in crime bearing F.I.R. No,286 of 2005 Police Station North Nazimabad Karachi registered under sections 353/324/34, P.P.C. On 18-8- 2005 by Sub-Inspector Liaqat Ali Arif on behalf of State alleging therein that the applicant along with two other co-accused assaulted the police party with intent to deter them from discharging their duties and intentionally attempted to cause Qatl-e-Amd.
2. ' Bail is pressed on the ground that neither any empty was recovered from place of Wardat nor any one from either side was injured. It is urged that the co-accused was granted bail by the lower Court, and that the applicant is innocent and has been falsely implicated.
3. ' Learned State counsel has opposed the grant of bail contending that the accused were arrested on the spot. She suggests that direction be given to the trial Court to proceed with the case expeditiously though she has not disputed grant of bail to co-accused.
4. ' The contentions put forward have been considered and material placed on record has been perused.
5. ' Admittedly neither crime-empties were secured from the place of Wardat nor any person from either side sustained injury in the alleged encounter. The applicant is behind bars since more than past one year but the case has not concluded in spite of the fact that all the witnesses are police personnel. In this view of the matter, imparting direction to proceed with the case expeditiously will be of no consequence as the prosecution does not seem to be serious in prosecuting the case. The applicant cannot be allowed to rot in jail on account of lukewarm, lethargic rather callous conduct displayed by the police.
6. ' In the circumstances, the applicant is directed to be released on bail subject to furnishing surety in the sum, of Rs,1,00,000 (Rupees one lac) and P.R. Bond in the like amount to the satisfaction of the trial Court.
7. ' Before parting with the order it is deemed appropriate to note that certified true copy of bail order, dated 15-4-2006, placed on record shows that co-accused Rahim Saeed was granted bail by Ms. Akhtar Sultana Vth Assistant Sessions Judge, Karachi, while subsequently, the bail was declined to the applicant by Ms. Zahida Sikandar Assistant Sessions Judge, Karachi Central without taking note of the previous bail order, and/or distinguishing the role of the applicant, though the ground of grant of bail to co-accused conspicuously appears to have been taken in his application for bail.
8. Obviously enough the refusal of bail to the applicant, was violative of the rule of consistency and militated against the norms of smooth and even-handed dispensation of justice. Indeed such indifferent and imprudent conduct demonstrated by Judicial Officers contributes in increasing the workload on this Court, apart from causing uncalled for hardship to the accused persons. Learned M.I.T. Shall look into this and prepare a self-contained note for consideration of Honourable Chief Justice.