MAZHAR alias MAZHAR ALI vs THE STATE
This matter arises from a post-arrest bail application filed under Section 497 of the Code of Criminal Procedure 1898 in respect of Crime No. 77 of 2004 registered at Police Station Dadu for offences under Sections 302, 114, 147, 148, and 149 of the Pakistan Penal Code 1860. The core legal question concerns whether the applicant is entitled to post-arrest bail on the ground of consistency with co-accused persons who have already been admitted to bail, given that his name did not transpire in the first information report and no active role of firing was attributed to him in statements recorded under Section 161 of the Code of Criminal Procedure 1898. The Sindh High Court held that since no active role was attributed to the applicant and his case stood at par with a co-accused who was earlier granted bail, the doctrine of consistency applied, entitling him to the concession of bail. The court laid down the principle that an accused person whose case is on a par with co-accused already released on bail, and against whom no active role is attributed in the crime, is entitled to bail under the doctrine of consistency.
- Whether an accused whose name does not appear in the first information report is entitled to post-arrest bail on the ground of consistency when co-accused with similar or lesser roles have been admitted to bail?
- Does the mere presence of an accused armed with a weapon, without any active role attributed in the commission of the offence, warrant the refusal of post-arrest bail?
- Whether the doctrine of consistency applies when assessing the bail plea of an accused whose case is at par with previously enlarged co-accused?
- Section 497, Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 114, Pakistan Penal Code 1860
- Section 147, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
ORDER
1. ' MRS. QAISER IQBAL, J.--- The applicant Mazhar alias Mazhar Ali son of Murad Ali has resorted to file application under section 497, Cr.P.C. Connected with the Crime No,77 of 2004 registered at Police Station Dadu for commission of offences under sections 302, 114, 147, 148, 149, P.P.C. Earlier his bail plea was rejected by 1st Additional Sessions Judge, Dadu, therefore, he has resorted to file the application.
2. ' Prosecution story as unfolded in the first information report is that an incident of triple murder has occurred on 1st May 2004 in the house of the complainant at about 2-30 a.m. And the report was lodged at Police Station Dadu at 6-00 a.m. Wherein co-accused Akbar, Imdad, Ahmed Ali, Muharram were shown to be available on the place of incident duly armed with kalashnikovs along with Haji Ismail empty-handed and unidentified assailants who were also armed with guns and rifles, as a result they committed murder of Ghulam Nabi, Soomar and Mst. Pathani. According to the first information report, the role of firing assigned to co-accused Akbar, Imdad and Ahmed Ali.
3. The name of the applicant does not transpire in the first information report however, P.W.
4. Muhammad Hassan and Buxial in their statements under section 161, Cr.P.C. Connected the applicant in the case only the presence of the applicant has been shown at the place of Vardat duly armed with rifle.
5. Mr. Abbasi has mainly contended that co-accused Rustam was admitted on bail by this Court in Criminal Bail Application No,S-855 of 2004 vide order dated 13th July, 2005 whereas co-accused Muharram son of Muhammad Hashim was admitted on bail by this Court vide order dated 3-4- 2006 in Criminal Bail Application No,S-607 of 2005. It is urged that the case of the applicant is at par to the case of co-accused Rustam and is on better footing than that of co-accused Muharram, therefore, the applicant be admitted to bail on the principle of consistency.
6. ' Learned A.A.-G. Has fairly conceded to the fact that the name of the applicant does not transpire in the F.I.R. And later he was connected by the prosecution witnesses, but no active role was assigned to him.
7. ' I have considered the arguments advanced at the bar and have perused the orders referred to by the learned counsel for the applicant.
8. There is no cavil, as appears from police record that at the time of incident applicant was armed with the rifle, corroborated by the statements of the prosecution witnesses Buxial and Muhammad Hassan effected under section 161, Cr.P.C., no active role was attributed to him in the commission of crime, the case of the applicant is at par with that of the co-accused Rustam, importing the doctrine of consistency the applicant is also entitled to the concession of bail.
9. ' Accordingly, the applicant Mazhar alias Mazhar Ali is admitted to bail upon furnishing solvent surety in the sum of Rs,3,00,000 (Rupees three hundred thousand) and P.R. Bond in the like amount, to the satisfaction of trial Court.
Cited by 2 cases
- HALEEM KHAN and anothers vs THE STATE and another 2009 P Cr. L J 176
- WAZIR KHAN vs THE STATE and another 2008 PLD Peshawar 42