ZIA-UD-DIN vs THE STATE and another
The petitioner sought post-arrest bail in case F.I.R. No. 41 dated 2-3-2010 registered under sections 302/34, Pakistan Penal Code at Police Station Ghoriwala, after his earlier bail applications were dismissed by the lower fora. The core legal question was whether the petitioner was entitled to bail on the grounds of an uncharged initial report, a belated supplementary statement based on suspicion, the absence of direct evidence or disclosed source of information, and the rule of consistency vis-a-vis a co-accused. The Peshawar High Court held that the subsequent charge in the supplementary statement was based on suspicion, no direct evidence or source of information was shown, and the co-accused having been released, the petitioner was equally entitled to bail on the principle of consistency. The application was accordingly allowed, and the petitioner was admitted to bail.
- Is an accused entitled to post-arrest bail on the principle of consistency when a co-accused assigned the same role has been released on bail?
- Does a belated supplementary statement implicating the accused after an initial report against unknown persons warrant further inquiry under Section 497(2) of the Code of Criminal Procedure 1898?
- Can bail be granted when the initial F.I.R. does not charge any person and the subsequent statement lacks any disclosed source of information?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 164, Code of Criminal Procedure 1898
' ATTAULLAH KHAN J.---Having failed to get the concession of bail from the learned lower fora, the petitioner has filed this petition for grant of bail in case F.I.R. No,41 dated 2-3-2010 of Police Station Ghoriwala under sections 302/34, P.P.C.
2. According to the report of Abdul Qadoos Khan lodged on 2-3-2010 at 0500 hours, on the eventful night his brother, namely, Usman Ghani had not returned home after offering Eisha prayer who was searched and at 0400 hours, his dead body was found in the fields of `Shaikhan' within the limits of Jadid Abadi who was done to death with fire arms. However, none was charged for the offence.
3. Learned counsel for the petitioner argued that in the initial report, the complainant has charged nobody and in his supplementary statement recorded under section 164, Cr.P.C., the petitioner was charged. He argued that Farooq, co-accused of the petitioner, has been bailed out and on the principle of consistency, the petitioner is also entitled to bail. He submitted that there is no eye- witness in the case and no source of information is disclosed by the complainant.
4. On the other hand, learned counsel for the complainant and counsel for State argued that the petitioner is charged by the complainant in his supplementary statement recorded under section 164, Cr.P.C. And the case of co-accused Farooq is distinguishable from that of the petitioner.
According to them, the petitioner is an Afghan Refugee and is a desperate and hardened criminal.
5. I have carefully perused the record and anxiously considered the arguments advanced at the bar.
6. Perusal of the record reveals that nobody was charged by the complainant and the charge was against unknown accused. Later his statement was recorded under section 164, Cr.P.C. Wherein the petitioner was charged. This subsequent charge by the complainant is to be dealt with at the trial stage which too is based on suspicion, meaning thereby that the complainant was not sure about the real culprits. Perusal, of this statement dated 5-3-2010 reveals that three persons are charged therein after three days of the occurrence. Farooq, co-accused of the petitioner has been released on bail, though on compromise, but his case is not distinguishable from that of the petitioner as both of them have been assigned the same role and thus on the principle of consistency, the petitioner is entitled to bail. Furthermore, no source of information is given by the complainant as to who informed him about the murder of his brother by the accused. In short, there is no direct evidence at the moment to connect the petitioner with the commission of the offence.
7. Consequently, this application is allowed and the accused/ petitioner is admitted to bail in the sum of rupees two Lacs with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate, who shall see that the sureties are local, reliable and men of means.