Azhar Khan vs The State and another
This matter comes before the Lahore High Court through a petition filed under Section 497 of the Code of Criminal Procedure 1898, wherein the petitioner seeks post-arrest bail in respect of a case registered under Sections 302, 324, 337D, 337A(i), 337F(iv), 337F(vi), 148, and 149 of the Pakistan Penal Code 1860 at Police Station Waris Khan, Rawalpindi. The core legal question involves determining whether the petitioner is entitled to post-arrest bail in view of conflicting statements regarding the specific attribution of injuries, the legal effect of absconsion, and the application of the rule of consistency given that co-accused had already been granted bail. The court held that the case falls within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898, noting discrepancies in injury attributions, the sufficiency of absconsion alone as a ground to refuse bail, and the entitlement of the petitioner to bail under the rule of consistency. The key principles laid down are that absconsion alone is insufficient to refuse bail due to the general fear of police, that vicarious liability is to be determined at trial after recording evidence, and that an accused is entitled to bail under the rule of consistency when co-accused facing similar allegations have been granted bail.
- Whether absconsion of an accused alone is a sufficient ground to refuse post-arrest bail?
- Does an accused become entitled to post-arrest bail under the rule of consistency when co-accused facing similar roles have been granted bail?
- Can further incarceration in jail serve any useful purpose when the investigation is complete and trial has not concluded?
- Section 497, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 337D, Pakistan Penal Code 1860
- Section 337A(i), Pakistan Penal Code 1860
- Section 337F(iv), Pakistan Penal Code 1860
- Section 337F(vi), Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
Through this petition under section 497 Cr.P.C. the petitioner has sought post-arrest bail in case FIR No.653/2013 dated 04.09.2013 under sections 302, 324, 337D, 337A(i), 337F(iv), 337F(vi), 148, 149 PPC, registered at Police Station Waris Khan, Rawalpindi.
2. The arguments advanced by learned counsel for the parties have been heard and record has been perused with their able assistance. This is bail after arrest and deeper appreciation is not allowed at this stage. It has been noticed by this Court that the petitioner is named in FIR, however , according to the story of FIR, the injury attributed to the petitioner on the head of Gul Bahar Khan deceased is also attributed to Qayyum Khan co-accused. Afterw ards, the complainant got recorded his supplementary statement dated 04.09.2013 wherein he specifically attributed the injury on the head of Gul Bahar Khan deceased to Qayyum Khan co-accused. Same is the position of injured PWs who too attributed the above said injury to Qayyum Khan co-accused. They have, however , stated in their statements under section 161 Cr.P.C. that the fire shot made by the petitioner hit the deceased on his body . In this regard it has been noticed that besides injury on the head of the deceased, there is another injury on his left foot, but according to FIR, Ramzan Khan co-accused has also been attributed firearm injury to the deceased. Furthermore injury on left foot of the deceased has not been mentioned by the complainant in FIR as well as in his supplementary statement and even the injured PWs have not given exact locale of injury allegedly caused by the petitioner . It is settled law that vicarious liability of the petitioner in the commission of alleged occurrence shall be determined by the learned trial court after recording evidence. As far as the contention of learned counsel for the complainant that the petitioner remained absconder for about two years is concerned, suffice it to observe here that absconsion of accused, alone, is no ground to refuse bail as people do abscond due to fear of police. Co-accused of the petitioner namely Arif Khan, Murad Khan, Qadeer Khan, Habib Khan and Abdul Rauf Khan have already been enlarged on post-arrest bail by the learned trial court vide orders dated 02.12.2013, 21.12.2013 and 21.01.2014, whereas Muhammad Imtiaz co-accused was allowed post arrest bail by this Court vide order dated 12.11.2013, therefore the petitioner also deserves same treatment under the rule of consistency . Admittedly the petitioner is previous non-convict. He was arrested in connection with the instant case on 16.09.2015 and since then he is behind the bars without any fruitful progress in conclusion of his trial. Investigation of the case is complete and the petitioner is no more required for further investigation, therefore, further incarceration of the petition er in jail would not serve any useful purpose. Mere commencement of trial is no ground to refuse bail to an accused if otherwise he becomes entitled to this concession.
3. For what has been discussed above, the case of the petitioner becomes one of further inquiry covered by sub- section (2) of section 497 Cr.P.C. This petitio n is, therefore, allowed and the petitioner is granted bail after arrest subject to his furnishing bail bond in the sum of Rs.400,000/- (Rupees four hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned trial court.
4. The observations made above are tentative in nature and are strictly confined to the decision of this bail petition only.