SAFDAR ALI alias SAFDAR WELDER vs STATE etc.
This matter involves a criminal miscellaneous petition filed by Safdar Ali alias Safdar Welder seeking post-arrest bail in case FIR No. 567/2010 registered under Sections 302, 395, 324, 109, 148, 149, and 412 of the Pakistan Penal Code 1860 at Police Station Saddar Kasur, along with a cross-version complaint case. The core legal question is whether the petitioner is entitled to post-arrest bail where no active role or fatal injury is attributed, no recovery is effected, a co-accused with a similar role has been granted bail, the complainant has no objection to the bail, and the trial is not progressing. The Lahore High Court held that the petitioner is entitled to bail, applying the rule of consistency and holding that the case falls within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898. The key principle laid down is that an accused person is entitled to bail under the rule of consistency and further inquiry when no active or fatal role is attributed, no recovery is made from him, and the complainant consents to the grant of bail.
- Whether an accused is entitled to post-arrest bail under the rule of consistency when a co-accused assigned a similar role has already been enlarged on bail?
- Does a case fall within the ambit of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898 when no active role or fatal injury is attributed and no recovery is effected from the accused?
- What is the legal effect of the complainant's statement before the court that he has no objection to the release of the accused on post-arrest bail?
- Section 302, Pakistan Penal Code 1860
- Section 395, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 412, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER
By this single order, I intend to dispose of this Crl. Misc. as well as Crl. Misc. No, 6842-B/2011 as the both are arisen out of the FIR and complaint case filed by the same complainant.
2. Petitioner Safdar Ali alias Safdar Welder seeks post arrest bail in case FIR No, 567/2010 dated 22.08.2010 under Sections 302, 395, 324, 109, 148, 149, 412 PPC registered at Police Station Saddar Kasur District Kasur as well as in cross-version case got recorded by the same complainant in the same FIR.
3. Tersely, the allegation against the petitioner, as per prosecution story, is that on 22.08.2010, he, while sitting, on rear seat of the motor cycle, pointed out the house of the complainant to the unknown person, who was driving the motor cycle and went back immediately. Thereafter the complainant approached Arshad, the brother of the petitioner and alarmed him about this fact but on the same day at 1:45 p.m. other accused committed the offence of dacoity along with murder of father of the complainant. During the episode the co-accused made fire at the father of complainant which hit on his leg, the complainant also received injury.
4. Learned counsel for the petitioner contends that petitioner is innocent and has been falsely involved in this case; that no active role is attributed to the petitioner except that he pointed out the house of the complainant; that there are clear cut contradictions in the FIR lodged by him as well as complaint filed by him; that no fatal role in whole prosecution story is attributed to the petitioner; that nothing has been recovered from the petitioner during investigation; that the co- accused having been assigned the same role has been enlarged on bail by the learned trial Court; that complainant of the case himself has stated before the learned trial Court that he has no objection if the petitioner is released on post arrest bail; that the petitioner was arrested on 14.09.2010, and since then he is behind the bars and his further detention will not serve any useful purpose to the prosecution; that trial of the case is not in sight; hence, the petitioner is entitled to concession of bail.
5. On the other hand, learned Deputy Prosecutor General resisted the bail petition contending that the petitioner is named it the FIR; hence, he is not entitled to any leniency.
6. Arguments heard. Record perused.
7. Although the petitioner is nominated in FIR but no active role of causing injury to the deceased or the complainant is attributed to him. No recovery has been effected from the petitioner. The complainant has also entered appearance and stated before the Court that he has no objection on grant of bail to the petitioner. Initially the complainant lodged the FIR but thereafter he filed the complaint in which first version of the complainant has been changed by taking the "U turn stating that the at the instance of petitioner and Nooni Shah, the accused persons have committed the occurrence and the aforesaid Nooni Shah provided pistol to Qurban alias Bana. Co-accused Muhammad Waqas Shah alias Nooni Shah moved an application for bail before arrest before the learned Sessions Judge, Kasur which was confirmed vide order dated 05.05.2011, hence under the rule of consistency, petitioner is entitled to the same treatment. Even otherwise trial of the case is not in progress and the petitioner cannot be kept in jail for an indefinite period especially when the complainant has no objection on release of bail. The case of the petitioner also falls within the ambit of further inquiry under Section 497(2) Cr.P.C.
8. In view of what has been discussed above, I am inclined to allow this bail petition and the petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs, 200,000/- each with two sureties in the like amount to the satisfaction of learned trial Court.