Farooq Mehndi vs The State and another
This matter concerns a petition for post-arrest bail filed by an accused charged under Section 302 read with Section 34 of the Pakistan Penal Code 1860. The court first addressed the procedural issue of frequent adjournments requested by complainants to engage private counsel, clarifying that under Section 493 of the Code of Criminal Procedure 1898, the Public Prosecutor is the primary authority responsible for prosecution, and private counsel only assists. Regarding the merits, the court noted that while the petitioner was alleged to be present at the crime scene with a weapon, no specific overt act was attributed to him. Furthermore, a co-accused with a more significant role (raising a lalkara) had already been granted bail, which remained unchallenged. The court held that the petitioner's case was on a better footing than the co-accused and that continued detention would constitute pre-trial punishment. Consequently, the court allowed the bail petition, emphasizing that the role of the accused was less culpable than that of the co-accused already released.
- Does the presence of a privately engaged counsel for the complainant override the authority of the Public Prosecutor under Section 493 of the Code of Criminal Procedure 1898?
- Is a petitioner entitled to bail if their alleged role is less significant than that of a co-accused who has already been granted bail?
- Does continued detention of an accused without specific overt acts constitute pre-trial punishment?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 493, Code of Criminal Procedure 1898
Farooq Mehndi-petitioner seeks post arrest bail in case FIR No.303, dated 10.04.2016 offence under Section 302 read with Section 34 PPC registered at police station Airport, District Rawalpindi.
2. Mst. Aziza Bibi-complainant, on appe arance, seeks time to engage a counsel and then to instruct him to represent her in this matter . On probe, she has candidly admitted that she has alrea dy engaged a lawyer in order to represent her in the case and, in fact, said lawyer has instructed her to get an adjournment for his appearance on the next date of hearing.
3. This has become almost a routine in all criminal matters, particularly , the petitions for release of some under trial prisoner on post arrest bail that on one date of hearing the complainant appears in person and gets time to engage a counsel and on the next date of hearing a counsel appears with the submission that since he has recently been engaged, he be given some time for preparation of the matter . In such like manner a petition which has to be decided, at the most, by adjourning the same, for one or two occasions takes practically quite a number of adjournments for its conclusion. In cases registered through FIRs, it is, in fact, the responsibility of the State to prosecute the stance of the complainant side and in view of the provisions of Section 493 of Criminal Procedure Code, 1898, it is the Public Prosecutor , who is suppose to plead in all the Court s, for prosecution and even if a pleader is privately engaged to look after the interest of the complainant, he would only be competent to render assistance to the learned Public Prosecutor and nothing else. If the complaina nt of the case is interested in independent representation of his cause, he may avail such opportunity by filing a private complaint and in that event the privately engaged counsel would have every competence to represent the complainant independently .
4. Learned Deputy District Public Prosecutor for the State is present and he is not in need of any assistance to be provided by the learned counsel for the complainant, hence, the petition is directed to be argued by learned counsel for the petitioner as well as learned Deputy District Public Prosecutor for the State.
5. Although the presence of the present petitioner at the crime scene alongwith a pistol has been alleged in the First Information Report, but except his such presence no overt act has been attributed against him.
6. A co-accused of the petitioner , namely , Amir Altaf, who was attributed the role of raising a lalkara , was allowed bail by this Court on 30.08.2016 in Criminal Miscellaneous No.1527-B of 2016. Such release of Amir Altaf has never been challenged by the complainant side or the State. The alleged role of the present petitioner in the reported crime is less than that of Amir Altaf noted above and case of the petitioner , thus, for his release on post arrest bail is on better footing than that of the earlier released co-accused of the petitioner . The petitioner is behind the bars since 28.06.2016 and presen t detention, in such circumstances, would be nothing but a pre-trial punishment, which is not the intention of law .
7. Resultantly , this application is allowed and the petitioner is ordered to be released on bail subject to his furnishing bail bonds in the sum of Rs.5,00,000/- (rupees five lac only) with one surety in the like amount to the satisfaction of the learned trial Court.