NASRULLAH SHARIF vs STATE
This matter arises from an application for confirmation of pre-arrest bail in F.I.R. No. 40 of 2001 registered under Sections 409, 420, 468, 471, and 34 of the Pakistan Penal Code 1860 read with Section 5(2) of the Prevention of Corruption Act 1947 at Police Station ACE Karachi, relating to illegal allotment of plots by cooperative society office bearers. The core legal question concerns whether the applicant is entitled to pre-arrest bail on the grounds of non-mention in the F.I.R. and the rule of consistency, given that co-accused had already been granted bail or acquitted. The Sindh High Court held that the applicant was entitled to the same treatment as the co-accused under the rule of consistency, confirming the interim bail before arrest. The key principle laid down is that an accused person whose name was omitted from the initial report and whose co-accused have received favorable relief of bail or acquittal is entitled to enlargement on bail based on the rule of consistency.
- Whether an accused whose name is not mentioned in the F.I.R. is entitled to pre-arrest bail on the rule of consistency when co-accused have been granted bail or acquitted?
- Does the inclusion of an accused's name only in the final challan rather than the F.I.R. or interim charge-sheet constitute a ground for confirmation of pre-arrest bail?
- Can a non-public servant accused alongside public servants claim the benefit of bail granted to co-accused?
- Section 409, Pakistan Penal Code 1860
- Section 420, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 5(2), Prevention of Corruption Act 1947
- Section 497, Code of Criminal Procedure 1898
- Section 498, Code of Criminal Procedure 1898
ORDER
1. Applicant-Nasrullah Sharif was granted interim bail before arrest on 12-9-2006 in F.I.R. No, 40 of 200,1 under Sections 409/420/468/471/34, P.P.C. read with. Section 5(2) ACT-II, 1947 of Police Station ACE Karachi. Today this case has come up for confirmation or otherwise.
2. The applicant is involved in this case which pertains to allotment of plots by the office bearers of Messrs Callachi Cooperative *Lousing Society Ltd. to their favourites.
3. Learned counsel for the applicant contended that name of the applicant has not been mentioned in the F.I.R; that some of the co-accused have been granted bail and some of theme have been acquitted; that even in the interim charge-sheet name of the applicant was not mentioned and only in the final challan with mala fide of the complainant his name was mentioned; that the applicant is a heart patient and has undergone bypass operation. Learned counsel has relied upon the case of Sihandar A. Karim v. State 1995 SCM R 387 and contended that accused who is a non- public servant cannot be convicted under Section 5(2). This would be a ground for his enlargement on bail under Section 497/498, Cr.P.C. He further contended that the accused would be entitled to bail on rule of consistency when accused who are public servants have been granted bail.
4. Learned counsel for the State is unable to controvert the above position.
5. Since co-accused being public servants have been granted bail and some of them have been acquitted; no name of the applicant having been mentioned, the applicant is also entitled to the same treatment as a rule of consistency.
6. Looking all the facts and circumstances, I am of the opinion-that the applicant is entitled to the same relief and thus confirm the interim bail before arrest granted to him on the same terms.