MUSRAFEEN vs STATE and 2 others
This matter comes before the Lahore High Court through a criminal miscellaneous petition seeking post-arrest bail for the petitioner, who stands accused in case F.I.R. No. 98 of 2009 registered under Sections 302, 201, 148, and 149 of the Pakistan Penal Code 1860 at Police Station Fateh Shah, Vehari, concerning the recovery of a dead body from a locked box in an unseen occurrence based on circumstantial evidence. The core legal question revolves around whether the petitioner is entitled to post-arrest bail on the grounds of consistency with co-accused who were already granted bail, notwithstanding that the trial has commenced and the offences fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898. The court held that since co-accused facing similar allegations had been admitted to bail, and given that the commencement of trial does not strictly bar the grant of bail when a proper case is made out, the petitioner is entitled to the concession of bail. The key principle laid down is that the rule of consistency applies to co-accused and that pre-trial or even during-trial incarceration should not be used as a form of anticipatory punishment where the tentative assessment of record points toward further inquiry, and that the mistaken relief of bail can be repaired upon conviction whereas unjustified incarceration of an innocent person is irremediable.
- Whether post-arrest bail can be granted to an accused on the rule of consistency when co-accused facing similar allegations have already been admitted to bail?
- Does the commencement of a trial operate as an absolute bar to the grant of post-arrest bail under the law?
- Whether an accused implicated on circumstantial evidence in an unseen occurrence is entitled to further inquiry under Section 497 of the Code of Criminal Procedure 1898?
- Section 302, Pakistan Penal Code 1860
- Section 201, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
Through this petition, petitioner seeks post-arrest bail in case F.I.R. No, 98/2009 dated 14.04.2009 registered at Police Station Fateh Shah, Vehari under Sections 302, 201, 148, 149 P.P.C. at the instance of Abdul Ghafoor, complainant, Respondent No, 2.
2. Briefly allegations against the present petitioner is that the dead body of Rasheed Ahmad was lying in a locked box was recovered from the officials place of Canal P.I. near the land of Farooq Ahmad, below the eastern Patri of the canal, Hence, this F.I.R.
3. Petitioner applied for his post-arrest bail before the learned Additional Sessions Judge, Burewala, who dismissed the same vide order dated 23.02.2010.
4. Learned counsel for the petitioner submits that petitioner is falsely implicated in the present case on the basis of enmity; petitioner is not named in the 'FIR which is unseen occurrence; there is no eyewitness of the story; the dead body of the deceased was found sealed in the box; petitioner is behind the bars since his arrest; co-accused Muhammad Bilal was allowed bail by this Court vide Crl. Misc. No, 3920-B-09 and other co-accused Khadim Hussain was also allowed bail vide order dated 3.3.2010 through Crl. Misc. No, 380-B-2010; accused was in custody since his date of arrest; petitioner is no more required for any probe and investigation; no useful purpose would be served while keeping the petitioner behind the bars for an indefinite period as a punishment, learned counsel for the petitioner makes reliance on case titled as Muhammad Umar versus The State and another (PLD 2004 SC 477), therefore, the petitioner is entitled to the concession of post-arrest bail.
5. On the other hand, learned D.D.P.P. with the assistance of learned counsel for the complainant vehemently opposed the grade of bail on the ground that trial has commenced at this stage bail be refused; challan of the case has been submitted before the trial Court and trial had already been commenced; offences falls within the prohibitory clause of Section 497 Cr.P.C., therefore, petitioner is not entitled to the concession of bail.
6. I have heard the learned counsel for the parties at length and perused the record.
7. Earlier co-accused, namely, Muhammad Bilal was allowed bail by this Court vide Crl. Misc. No, 3920-B-09 and other co-accused, Khadim Hussain was also allowed bail vide order dated 03.03.2010 through Crl. Misc. No, 380-B-2010 by this Court. It was an unseen occurrence and dead body of the deceased was found in sealed box when A the smell from box is emitted. The petitioner was implicated in this case on the basis of circumstantial evidence. Co-accused, Muhammad Bilal from whom the ring of the deceased was allegedly recovered by the police was allowed bail by this Court. The case of the petitioner no doubt identical with Muhammad Bilal, co-accused. Learned counsel for the petitioner rightly placed reliance on Muhammad Umar versus The State and another (PLD 2004 SC 477) in which Hon'ble Supreme Court allowed bail, even, the trial of the case has commenced. Partial evidence has been recorded. It is not barred to accept bail petition if otherwise case for bail is made out in the case the trial has commenced. It is observed in case titled Haji Muhammad Nazir versus The State (2008 SCM R 807). Grant of bail does not mean acquittal of accused but only change of custody from Government Agencies to the Sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever he is required to be produced. If the petitioner is not allowed bail till conclusion of his trial, ultimately, he is acquitted and prosecution fails to prove its case, there will be no reparation for the period, the petitioner is incarcerated. If prosecution proves its case against the petitioner, he will be convicted.
It is held by Hon'ble Supreme Court of Pakistan in case titled as Tariq Bashir vs. The State. Tariq etc. vs. The State (PLD 1995 SC 34): "The ultimate conviction and incarceration of a guilty person can repair the wrong caused by as mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any state of the case, albeit his acquittal in the long run."
8. In the light of above discussion, this petition is accepted and the petitioner is admitted to post- arrest bail subject to his furnishing bail bonds in the sum of Rs, 1,00,000/- with one surety in the like amount to the satisfaction of learned trial Court. However, observations made above are of tentative in nature, will not prejudice the case of either side during the trial.