KALAY KHAN alias KALLU vs The STATE and another
This matter arises from a criminal petition for post-arrest bail filed by Kalay Khan alias Kallu, who was accused along with others of murder. The core legal question concerns whether the petitioner was entitled to post-arrest bail on the principle of consistency and on the basis of further inquiry under criminal procedure, given that a co-accused facing similar allegations had already been granted bail and medical evidence contradicted parts of the prosecution case. The Lahore High Court held that the petitioner's case was at par with the co-accused who had already been granted bail, and that equity of treatment must be maintained. Furthermore, the medical evidence did not support the specific injury locale attributed to the petitioner, bringing his case within the scope of further inquiry. The court laid down the principle that parity and equity of treatment must be maintained among co-accused when reasonable grounds exist for further probe into an accused's guilt under statutory bail provisions.
- Whether post-arrest bail should be granted to an accused on the ground of parity when a co-accused with similar allegations has already been admitted to bail?
- Does a contradiction between ocular testimony and medical evidence regarding the injury locale justify further inquiry into the guilt of an accused under criminal procedure?
- Whether equity of treatment must be maintained among co-accused persons in criminal matters?
- Section 497(2), Code of Criminal Procedure 1898
ORDER
1. ' SHAHID HAMEED DAR, J.---The petitioner, Kalay Khan alias Kallu faces the allegation that he being armed with pistol .30-bore joined by eight others, all armed with firearms of different bores, fired at Muhammad Saleem and murdered him at 2.00 p.m. On 22-9-2012. The petitioner specifically fired twice at the right shoulder and right buttock of the deceased. The motive behind the occurrence pertained to a previous murder-case, Jahangir being the deceased thereof.
2. After hearing learned counsel for the parties and perusing the record, it is observed that a co- accused of the petitioner, namely Ghulam Qadir, who allegedly fired at the right buttock of the deceased, was granted post-arrest bail vide order dated 20-3-2014, made by this court in Cr1.
2. Misc.No,1492-B of 2014, with the following observations:- "It is observed that the complainant has bracketed eight accused together, with the liability of firing at the right buttock of the deceased. There are eight entry holes, each measuring 0.1 cm diameter, as can be visualized from the postmortem examination report of the deceased. The Investigating Officer failed to verify the story of F.I.R. As narrated by the complainant in complete terms as he declared all the accused innocent during investigation but Kalu, Ali Ahmad and Ghulam Qadir (petitioner) accused. Learned Deputy Prosecutor General Punjab has seen the pictorial diagram, a part of the necropsy report again and again and looked perplexed, if cluster of injuries shown therein, could be caused by a rifled weapon(s). None of the accused had been shown armed with a soft bore weapon. All the entry-holes on the right buttock of the deceased are located in close proximity inter se. Who knows that all of these injuries may be the result of a single fire shot of a .12 bore weapon."
3. ' The reproduced observations, as above, are equally attracted to the petitioner's case so far as the allegation of firing by him at the right buttock of the deceased is concerned. The other allegation against him that he hit right shoulder of the deceased with a fire-shot is not supported by the medical evidence as necropsy report shows no injury-mark at the said locale. There, however, a firearm injury may be seen at the left shoulder of the deceased, but it is an exit wound. No other role than the one, as mentioned above, has been attributed to him. His case seemingly looks at par with that of Ghulam Qadir accused, already granted bail on 20-3-2014, as pointed to hereinabove.
4. Equity of treatment has to be maintained between them. The petitioner was taken into custody on 30-11-2012 and he is no more required for the purpose of any recovery or investigation etc. There exist reasonable grounds to berieve that his (petitioner) case calls for further probe into his guilt within the scope of section 497(2), Cr.P.C. Therefore, this application is allowed and petitioner is admitted to post-arrest-bail subject to furnishing bail bonds in the sum of Rs,2,00,000 (two Lacs) with two sureties each in the like amount to the satisfaction of the learned trial court.