ABDUL HAMEED vs STATE and another
This criminal miscellaneous application arises out of a petition for post-arrest bail filed by Abdul Hameed, who was declined bail by the Senior Special Judge Anti-Corruption, in a case registered under Sections 419, 420, 468, and 471 of the Pakistan Penal Code read with Section 5(2) of the Prevention of Corruption Act. The core legal question concerns whether the accused is entitled to bail on the grounds of statutory punishment limits and the principle of consistency, despite allegations of fabricating a fake transfer document to fraudulently sell valuable land, and having a background of similar offenses. The Peshawar High Court held that the petitioner is not entitled to bail, as the principle of consistency does not apply due to his pivotal role as the primary beneficiary and his involvement in repeated commission of similar crimes, which removes him from the protective umbrella of the prohibitory clause exception. The key principle laid down is that while offenses outside the prohibitory clause generally favor bail, this discretion can be withheld where the accused faces credible allegations of habitual or repeated deceitful crimes directly affecting society.
- Does the principle of consistency apply to an accused who is the primary beneficiary and plays a pivotal role compared to co-accused granted bail?
- Can bail be refused in offenses falling outside the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898 due to a history of repeated similar offenses?
- Does an accused facing allegations of habitual fraud lose the right to discretionary relief of bail?
- Section 419, Pakistan Penal Code 1860
- Section 420, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 5(2), Prevention of Corruption Act 1947
- Section 497, Code of Criminal Procedure 1898
The accused petitioner Abdul Hameed has been declined bail by Mr. Sharif Ahmad Senior Special Judge Anti-corruption NWFP Peshawar vide his order dated 22-10-07 in case FIR No, 16 dated 18-10- 2006 under Sections 419-420-468-471-PPC read with Section 5(2) PC Act of Police Station ACE Peshawar. Now he has applied to this Court for bail.
2. Arguments of Mr. Jamroz Khan advocate for accused petitioner and Mr. saadat-ur-Rehaman advocate for the Sate have been heard in the light of record.
3. According to the prosecution case, valuable land measuring 40 Marla was allotted to Kashmir who 'entered in to agreements to sell through their registered power of attorney.. holder Muhammad Bashir for Rs, 80,00,000/- out of which Rs, 40,(16,000/- were paid in advance by the vendee. This transaction took place on the basis of PTD No, 890786. Subsequent thereto, the accused petitioner Abdul Hameed, who is not Kashmir refugee, arranged a fake PTD No, 325580 in his name and sold the same property to Hazrat Khan etc for Rs, 25,00,000/-.
4. Learned counsel for the accused petitioner took the point that the co-accused namely Syed Gul Mohammad. and ,Mohammad Bashir have since been released on bail by this Court vide order dated 2.7.2007, the accused petitioner is entitled be released on bail on the principle of consistency. But I believe that the principle of consistency is not attracted in the case of accuse& Petitioner for the pivotal role which he has played. In fact he is the beneficiary of the alleged fraud involving huge amount and valuable property. He has also a background of involvement in another similar case referred in the final report of the I.O. dated 16.7.2006 according to which he twice sold his own house on the basis of forged document and in this regard case F.I.R. No, 2 dated 31.1.2006 of Police Station Anti-Corruption under Sections 420/468/471 P.P.C. read with Section 5 (2)
P.C. Act is also pending against him.
5. The next point of the learned counsel fog .the petitioner was that the offences are punishable up to seven years imprisonment and the case is not hit by the prohibitory clause of Section 497 Cr.P.C.
6. No doubt, this is a general rule, but subject to exception too. When there are allegations of repeated commission of the same offences, directly affecting the society, the person involved may loose his right of bail based on general principles. This is to safeguard the public from his deceitful designs. In similar cases bail has been refused by the Hon'ble Supreme Court of Pakistan, as held in cases Tanweer Ahmad Haral vs. The State (2002 SCM R 1327) and Mehrban Ali vs. The State and another (2004 SCM R 229).
7. With these views, Since there is an established prima facie case, I do not want to exercise the discretion in favor accused petitioner in enlarging him on bail. However while with the order, it is directed, that challan be immediately and the trial Court should fix the case for trial for earliest disposal on merits.