KHALID HUSSAIN vs THE STATE through Anti-Corruption Establishment
This matter comes before the Sindh High Court through a criminal bail application filed by applicant Khalid Hussain seeking post-arrest bail in Crime No. 15 of 2007 registered at Police Station ACE Thatta under sections 409 and 34 of the Pakistan Penal Code 1860 read with section 5(2) of the Prevention of Corruption Act 1947. The core legal question is whether the applicant is entitled to post-arrest bail based on the rule of consistency, given that co-accused facing identical allegations have already been granted bail, and considering findings from an official inquiry that found only minor irregularities without financial loss. The court held that the applicant is entitled to bail under the doctrine of consistency, as his case is at par with the co-accused and no formal proclamation proceedings under sections 87 and 88 of the Code of Criminal Procedure 1898 were initiated to legally classify him as an absconder. The key principle laid down is that an accused person cannot be denied bail merely on the ground of alleged abscondence unless formal legal proceedings under sections 87 and 88 of the Code of Criminal Procedure 1898 have been initiated, and that the rule of consistency applies when co-accused facing identical allegations have been granted bail.
- Whether an accused is entitled to post-arrest bail under the rule of consistency when co-accused facing identical allegations have already been admitted to bail?
- Can an accused be treated as an absconder to deny bail when no formal proceedings under sections 87 and 88 of the Code of Criminal Procedure 1898 have been initiated against him?
- Does an inquiry report exonerating an accused of misappropriation and noting only minor irregularities constitute a ground for further inquiry under section 497(2) of the Code of Criminal Procedure 1898?
- Section 409, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 5(2), Prevention of Corruption Act 1947
- Section 87, Code of Criminal Procedure 1898
- Section 88, Code of Criminal Procedure 1898
ORDER
' AHMED ALI SHAIKH, J.--- Through the instant application, applicant Khalid Hussain seeks post- arrest bail in Crime No,15/2007 of Police Station ACE Thatta for offences punishable under section 409, 34, P.P.C. Read with 5(2) of Act II of 1947.
2. The bail plea of the applicant has been turned down by the trial Court vide order dated 26-11- 2009.
3. According to F.I.R. Lodged by SIP Abdul Jabbar Awan Incharge Circle Officer ACE Thatta, there are allegations of misappropriation of an amount of Rs,1,24,200 in Government funds from 29-2-1997 to 21-8-2007 and Rs,2,91,800 from 1-9-1998 to 18-12-1998.
4. It is inter alia contended by the contended counsel for the applicant that the case of the present applicant is identical to the case of co-accused Abdul Hakeem and Mumtaz Ali and they have been admitted on bail by the trial Court vide order dated 20-7-2007 and 23-5-2007 respectively, therefore, the applicant is also entitled to concession of bail under rule of consistency. It is further contended that the inquiry in respect of alleged misappropriation was conducted by Additional Secretary Local Government and during inquiry it was found that present applicant and co- accused Abdul Hakeem have committed minor irregularity and it was observed that since no loss has been caused to the Council, therefore, allegations levelled against them were withdrawn and there is no reasonable ground to believe that the applicant is guilty of any offence punishable with death, imprisonment for life or for 10 years but there are many circumstances showing that the case of the applicant requires further inquiry. In support of his contentions, learned counsel has relied upon the case of Muhammad Daud and another v. The State and another 2008 SCM R 173.
5. Learned Assistant Prosecutor-General Sindh did not oppose the bail application so far the merits of the case are concerned as co-accused have already been admitted on bail but he pointed out that the applicant was absconder and in pursuance of NBWs issued by the trial Court, he was arrested later on, therefore his case is on different footings.
6. Admittedly under similar allegations, co-accused Abdul Hakeem and Mumtaz Ali have been admitted on bail by the trial Court and the case of present applicant is at par to the case of co- accused. So far abscondence of applicant/ accused is concerned, no proceedings under sections 87 and 88 Cr.P.C. Have been initiated against him, therefore, he cannot be treated as absconder. In view of the law laid down by Honourable Supreme Court in case of Khan Mir v. Amal Sherin @ Kamal and 2 others (1989 SCM R 1987). The findings of inquiry conducted by Additional Secretary Local Government have been placed on record, which reveal that present applicant and co- accused Abdul Hakeem were not found responsible for misappropriation and at the most they have committed some minor irregularity, therefore, they were exonerated from the charge of misappropriation.
7. In view of the above and keeping in view the fact that co-accused under similar allegations have been admitted on bail by the trial Court, the applicant also deserves the concession of bail under the doctrine of consistency. I, therefore, allow this application and admit the applicant on bail subject to furnishing his solvent surety in the sum of Rs,100,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.
' This criminal bail application stands disposed of.