Syed NAZAR ALI SHAH vs The STATE
This is a post-arrest bail application filed by the applicant Syed Nazar Ali Shah impugning the order of the Additional Sessions Judge, Naushahro Feroze, whereby his bail was declined in a case arising from FIR No. registered under sections including Section 324 of the Pakistan Penal Code 1860. The core legal question is whether the applicant is entitled to post-arrest bail on the grounds of further inquiry and the rule of consistency, given that a co-accused with an identical role had already been granted bail and the injury sustained was on a non-vital part of the body. The Sindh High Court held that the case falls within the purview of Section 337-F(iii) of the Pakistan Penal Code 1860 rather than Section 324, and does not fall within the prohibitory clause of Section 497(1) of the Code of Criminal Procedure 1898. The court laid down the principles regarding the rule of consistency in bail matters, evaluation of tentative assessment of evidence for non-prohibitory offences, and the applicability of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898, ultimately granting post-arrest bail to the applicant.
- Whether an accused is entitled to post-arrest bail on the ground of further inquiry when the injury sustained by the victim is on a non-vital part of the body?
- Does a case attract the prohibitory clause of Section 497(1) of the Code of Criminal Procedure 1898 when the offense prima facie falls under Section 337-F(iii) of the Pakistan Penal Code 1860 rather than Section 324?
- Whether the rule of consistency applies when a co-accused assigned an identical role has already been granted bail by the court?
- Section 324, Pakistan Penal Code 1860
- Section 337-F(iii), Pakistan Penal Code 1860
- Section 497(1), Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
SHAHNAWAZ TARIQ, J.--- Through captioned post arrest bail application, applicant Syed Nazar Ali Shah has impugned order dated 04.09.2015, passed by the Court of learned Additional Sessions Judge, Naushahro Feroze, whereby his earlier bail application was declined.
2. Necessary facts narrated in FIR are that complainant use to run a Hotel at Bus Stop Khahi Rahu, where on 08.07.2014, at 8.00 p.m., 7 armed persons came and on instigation of accused Ameer Ali Shah, co-accused Shakeel Shah and present applicant Nazar Shah made straight fires and Imam Bux sustained bullet injury on his right thigh; hence instant FIR.
3. Learned counsel for applicant contended that applicant is innocent and has been falsely implicated in instant case by the complainant due to ulterior motive; that accused did not repeat the fire though they all were armed with weapons; that two accused persons made direct fires upon injured but he sustained only one injury on his right thigh; that co-accused Shakeel Shah has already been granted bail by this Court to whom an identical role has been assigned and as rule of consistency, present applicant, also deserves for same concession. Learned counsel relied on 2009 M LD 348, 2010 M LD 1052, 2000 PCr.LJ 1917, 1994 PCr.LJ 1769 and 1998 SCM R 500.
4. Learned APG considering the injury on non-vital part of the body, extended no objection.
5. Heard arguments advanced by learned counsel for the parties supported with case law and perused the material available on record.
6. Indeed, parties are already disputed to each other, whteh is reflected from the averments of FIR: Allegedly, accused persons armed with lethal weapons came at the spot and only co-accused Shakeel Shah and applicant made straight fires on the injured, who sustained only one injury at his right thigh, which is non-vital part of the body. Admittedly, none of the culprits repeated fire though complainant and injured were purely at the mercy of accused persons, which prima facie indicates that they had no intention to commit murder of the injured or complainant, which controverts the applicability of section 324, P.P.C. And same requires further probe. Per medical report injured did not sustain any bone fracture. The factum of one injury sustained by the injured falls within the purview of (Mutalahimah) section 337-F(iii), P.P.C. Which is punishable for Daman and imprisonment for 3 years and same is not attracted by the restraining clause of section 497(1), Cr.P.C. In the case of Jan Muhammad v. Haji Noor Malal and another, the honourable Supreme Court has observed that case against accused in the light of provisions contained in Section 324, r/w Section 337, P.P.C. Did not fall within the prohibitory clause of Section 497(1), Cr.P.C. And accused was released on bail.
7. Co-accused Shakeel Shah has already been granted bail by this Court to whom an identical role was assigned and on the rule of consistency, present applicant is also entitled for same concession. Investigation has already been completed and applicant is no more required further to the police, hence, his further detention will not serve any useful purpose and there is no apprehension of tampering with the prosecution evidence. It is well settled that while examining the question of bail, Court has to consider the minimum aspect of the sentence provided for the alleged offence in schedule.
8. Considering the above circumstances, applicant has succeeded to make out a case for grant of bail on the ground of further enquiry as envisaged in Section 497(2), Cr.P.C. Consequently, applicant is granted post arrest bail subject to his furnishing solvent surety in the sum of Rs,50,000/- and P.R Bond in the like amount to the satisfaction of learned trial Court.
' The observations made above are tentative in nature and learned trial Court will decide the case strictly on merits.