M. ASHRAF vs THE STATE
The matter arises from a criminal petition filed by Muhammad Ashraf seeking post-arrest bail in respect of an offence under section 302 of the Pakistan Penal Code 1860, registered at Police Station Saddar, District Vehari. The core legal question involves determining whether the petitioner is entitled to post-arrest bail on merits and on the rule of consistency, given that a co-accused had already been granted bail. The Lahore High Court dismissed the petition, holding that the petitioner's case was distinguishable from that of the co-accused as he was a hardened criminal and a desperado with a history of numerous criminal cases, whereas the co-accused was a woman and had been granted bail prior to the commencement of the trial. The court established the key principles that the rule of consistency does not apply where the roles and circumstances of the accused persons differ, that a bail application may be refused to a hardened offender whose case falls within the prohibitory clause, and that every criminal case must be decided on its own merits.
- Whether an accused person with a history of multiple criminal cases can claim bail on the rule of consistency when a co-accused has been granted bail?
- Does the grant of bail to a female co-accused on the ground of her gender create a binding precedent for granting bail to a male co-accused?
- Is a petitioner with a chequered criminal record and involvement in numerous cases entitled to post-arrest bail for an offence falling within the prohibitory clause?
- Section 302, Pakistan Penal Code 1860
ORDER
' HASNAT AHMAD KHAN, J.--- Through this petition, Muhammad Ashraf petitioner has sought concession of post-arrest bail in case F.I.R. No,116 of 2006, dated 8-3-2006 registered at Police Station Saddar, District Vehari, in respect of offence under section 302, P.P.C.
2. Shorn of unnecessary details, prosecution story as narrated in the F.I.R. Lodged at the instance of Muhammad Yasin complainant is that Mst. Rani wife of the complainant was allegedly abducted in a case F.I.R. No,548 of 2005 registered at Police Station Saddar, Vehari. She allegedly started living with her uncle, Muhammad Ashraf (petitioner), Haleema and Abdullah co-accused. Sixteen or seventeen days prior to the registration of case, Muhammad Ashraf petitioner approached the complainant and deposed that his sons had been committing Zina with Mst. Rani (deceased) who became pregnant. According to him after knowing the said fact, Muhammad Ashraf petitioner caused miscarriage of the child. Thereafter Mst. Rani (deceased) fell seriously ill and she allegedly tried to get a case registered, against the petitioner. Due to the said reason, the petitioner along with his wife and sons allegedly murdered Mst. Rani (slain) by choking her breath.
3. In support of this petition, learned counsel for the petitioner has submitted that the prosecution case is based upon retracted extra-judicial confession of the petitioner, that post-mortem on the corpse of Mst. Rani Bibi (deceased) was conducted after disinterment of her body; that the reports of Bacteriologist and Chemical Examiner do not support the prosecution's case; that according to the death certificate the deceased had died of fever and that on the rule of consistency also, the petitioner is entitled to the bail as his co-accused namely Mst. Haleema had been granted bail by this Court vide order, dated 25-7-2006 passed in Criminal Miscellaneous No,1508/B of 2006.
Learned counsel for the petitioner has relied upon the cases of Fida Hussain v. The State and others 2002 SCMR 46, Muhammad Tufail and another v. State 2003 YLR 3195, Muhammad Umar v. The State and another PLD 2004 SC 477, Aftab Hussain v. The State 2004 SCM R 1467 and Ghulam Rasool v. State 1985 SCM R 1946.
4. Conversely, learned counsel for the complainant has contended that the contentions of the learned counsel for the petitioner relate to deeper appreciation of evidence; that the case of Mst.
Haleema Bibi, who had been granted bail by this Court, was distinguishable from that of the petitioner as she was mainly allowed bail on the ground of her being a woman. He adds that the petitioner is a desperate person having a long criminal history. In this regard, he has placed on the record 13 F.I.Rs, in which the petitioner is specifically named.
5. After hearing the arguments of both the sides and going through the record as also the impugned order which shows that the trial has already commenced, I refrain myself from commenting upon the contentions raised by the learned counsel for the petitioner as determination of the same is likely to prejudice the case of either of the parties. In this regard, reliance is placed upon the case of Allah Ditta 1990 SCM R 307. As far as the contention of the learned counsel for the petitioner regarding the rule of consistency is concerned, suffice it to observe that. Mst. Haleema Bibi co-accused was granted bail mainly on the ground of her being a woman. It is further observed that at the time of decision of her bail application, the trial had not started. Besides that unlike the petitioner, she was not found to be a desperado.
6. Before the learned Additional Sessions Judge, a list of 27 criminal cases, showing the involvement of the petitioner in the said, cases was produced. Even before this Court a list of criminal cases, 11 in number, showing the chequered history of involvement of the petitioner, in criminal cases has been produced. Said list further depicts that at least in one case, he was convicted. Said criminal history clearly shows that the petitioner is a desperado and a hardened criminal. Case against the petitioner falls within the prohibitory clause. The case-law produced by the learned counsel for the petitioner being distinguishable is not applicable to the facts and circumstances of the present case. Even otherwise it is established law that every criminal case has to be decided on the basis of its own merits. Reliance in this regard is placed upon case of Tariq Mehmood and another v. The State 2002 SCM R 32. Consequently, the petitioner is found to be meritless and is dismissed.
However, in the peculiar circumstances of the case, the learned trial Court is directed to conclude the trial as early as possible but not beyond the period of four months from the receipt of this, order.