SHER ABBAS and another vs THE STATE
This matter comes before the Lahore High Court through a criminal petition seeking post-arrest bail in respect of offences registered under the Pakistan Penal Code. The core legal question concerns whether the petitioners, alleged to have played specific roles including causing a single non-prohibitory injury and being a minor with no weapon recovery matching the ocular account, are entitled to bail considering further inquiry and the rule of consistency. The court held that where the injury attributed does not fall within the prohibitory clause, the co-accused has been released on bail, and police have declared one petitioner innocent while discrepancies exist between medical and ocular accounts, a case for further inquiry is made out. The court established the principle that pre-trial incarceration is unwarranted where offences do not fall within the prohibitory clause of the Code of Criminal Procedure and the accused's case warrants further inquiry into their guilt.
- Is an accused entitled to post-arrest bail when the offence attributed does not fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898?
- Whether the rule of consistency applies when a co-accused facing similar allegations has already been released on bail?
- Does a discrepancy between the ocular version and the medical evidence make out a case of further inquiry for the grant of bail?
- 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
' FAZAL-E-MIRAN CHAUHAN, J.-Through this petition, the petitioners seek post-arrest bail in case E.I.R.
No,446/04 dated 24-11-2004 registered under sections 324/337-D/148/149/337- F(i),(ii)/ 34, P.P.C.
With Police Station City Lodhran, District Lodhran.
2. Brief facts of the case are that on the complaint of Haji Muhammad a F.I.R. 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 Ahmed armed with Pistol injured the complainant and his nephew.
3. It is contended by the learned counsel for the. Petitioners that role attributed to petitioner No,l is that he caught hold of the complainant arid 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, l, Sher Abbas is minor of age of 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. The rc i? Conflict in the medical and the ocular version of the case. The co-accused, Shehbaz has been rdeased on bail and under the rules of consistency the petitioners are entitled to. Grant bail,' [2]
5. I have heard the learned counsel for the parties and perused the record.
6. As per the F.I.R, petitioner No,l, 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 coaccused. 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 falls within the Prohibitory Clause of section 497, Cr.P.C. The case of the petitioners is that of further injury. 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.