MUHAMMAD'SHAHID vs THE STATE
This criminal bail application arises from a case registered under sections 392 and 397 read with section 34 of the Pakistan Penal Code 1860, concerning an alleged armed robbery at a bakery. The applicant, who was apprehended at the scene by the complainant and witnesses with a loaded pistol, sought post-arrest bail, arguing false implication, lack of recovery of stolen items from his person, and the rule of consistency based on the bail granted to a co-accused. The core legal question was whether the applicant was entitled to bail despite being caught red-handed and whether the rule of consistency applied given the factual distinctions between his case and that of the co-accused. The Court dismissed the bail application, holding that the applicant's case was factually distinct from the co-accused, as the applicant was apprehended at the spot with a weapon, whereas the co-accused was not named in the FIR and had no recoveries against him. The Court affirmed that the rule of consistency only applies where the roles and allegations are identical.
- Does the rule of consistency apply to a co-accused when the roles and allegations against them are materially different?
- Can a bail application be granted on the ground of non-compliance with Section 103 of the Code of Criminal Procedure 1898 when the accused was apprehended at the spot by the complainant?
- Is an accused entitled to bail when caught red-handed with a weapon at the scene of the crime?
- Section 392, Pakistan Penal Code 1860
- Section 397, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 103, Code of Criminal Procedure 1898
ORDER
1. ' MUHAMMAD AFZAL SOOMRO, C.J.-This order will dispose of the above Criminal Bail Application arising out of Crime No, 143 of 2007 registered at Police Station Orangi Town, Karachi for offence under sections 392, 397/34, P.P.C.
2. ' The prosecution story as unfolded in the F.I.R. Lodged by complainant Muhammad Ali, is reproduced herein below:- ' "I reside at the address given in Column No,2 of F.I.R. And I have a Bakery in the name and style of "Rabia Sweet and Nimco Bakers" , at Qattar Hospital Road, Sector 8/L. Today i.e, 3-7-2007 I was busy in my business at Bakery along with salesmen Muhammad Shakeel, Bilal son of Ghulam Rasool and Nasrullah alias Guddu, when at about 11-15 p.m., three persons came in Bakery and two of whom asked me to keep quite by pointing pistols on me and opened the draw of counter and got Rs,5000 of sale from it. They also snatched mobile phone Samsung from Nasrullah alias Guddu. Two of them having cash and mobile phone went outside the bakery and one of them was present, in bakery whom I caught hold with the help of Muhammad Shakeel and Nasrullah and took also the pistol of .30 bore without number with magazine and two black coloured bullets from the right hand of that accused whereas his two companions succeeded to make their escape good on motor cycle. On our cry nearby shopkeeper and Muhalla people attracted and they beat the accused, due to which he told his name as Shahid son of Abdul Rasheed whereas he disclosed the names of one of the absconded accused as Azad. In the meanwhile police mobile of Orangi reached there and with the help of police, I produced accused Shahid son of Abdul Rasheed with recovered pistol at Police Station and I report that legal action may be taken."
3. ' The police after completion of the investigation submitted charge sheet in the Court of law, having jurisdiction. The bail applications Bled on behalf of the applicant were rejected by the trial Court vide order, dated 19-9-2007. Hence the instant bail application has been Bled before this Court.
4. ' It has been contended by the learned counsel for the applicant that the applicant is innocent, he has not committed any offence as alleged in the F.I.R. And the police have implicated him in this false and concocted case on the instigation of complainant. It has further been contended by die learned counsel that alleged mobile phone and cash of Rs,5000 were not recovered from the possession of the applicant. It has also been added that there is violation of section 103, Cr.P.C., in the present case, as no independent witness from the public has been cited. Learned counsel stressed upon his arguments that co-accused has already been granted bail by this Court, as such rule of consistency applied in the case of the present applicant.
5. ' Learned counsel appearing on behalf of the State opposed the bail plea of the applicant, for the reason that the applicant was caught hold at the spot and specific role of snatching of mobile and cash on gun point is assigned to him.
6. ' I have given my anxious consideration to the arguments advanced by the learned counsel for the respective parties and thoroughly examined the record made available before me.
7. ' As far as application for rule of consistency to the case of the present applicant is concerned, I am dissented with such contention of the learned counsel for the applicant. From the perusal of record it reveals that the case of the present applicant is not at par to the case of co-accused Akbar Hussain who has been granted bail earlier. The present applicant was caught hold red-handed by the complainant with the help of his Salesmen Shakeel Ahmed, Bilal and Nasrullah. They also recovered a pistol of .30 bore with loaded magazine containing two bullets, from the applicant. The other Muhalla people and nearby shopkeepers were also gathered at the spot and beaten the present applicant and when the police came he was handed over to them. The perusal of record further shows that co-accused who has been granted bail by the trial Court on the ground that neither the name of that accused was appeared in the F.I.R., nor any recovery was effected from him. On the contrary name of said coaccused' was disclosed by the present applicant. The bail on the ground of rule of consistency attracts when there appears same role and same allegations, but in the present case, facts and circumstances are quite different to the facts and circumstances of co-accused who has been granted bail by the trial Court. As regard other contentions of learned counsel in respect of violation of section 103, Cr.P.C. And false implication of the applicant is concerned, these have no force for the reasons that the applicant was caught hold at the spot by the complainant with the help of his salesmen and handed over to police. Furthermore no proof in respect of enmity of the applicant with the complainant has been furnished, therefore these grounds cannot be considered at the bail stage.
8. ' For the foregoing reasons I am of the view that no case for bail is made out by the applicant.
9. Resultantly I have no option except to dismiss this bail application. Consequently the present bail application is hereby dismissed. The trial Court is directed to complete the trial and dispose of the case expeditiously, preferably within a period of four months.
10. ' It is made clear that the above observations are tentative in nature which shall not influence upon the trial Court while disposing of the case.