HABIBULLAH vs The STATE
This criminal petition arises from the refusal of the Sessions Judge, Diamer, to grant post-arrest bail to the petitioner, who is charged under Section 302/34 of the Pakistan Penal Code 1860 and Section 13 of the Arms Ordinance 1965 in connection with FIR No. 06/2014 and FIR No. 10/2015. The core legal question was whether the petitioner was entitled to bail, particularly invoking the rule of consistency, given that a co-accused had been released by the police under Section 169 of the Code of Criminal Procedure 1898. The Gilgit Baltistan Chief Court held that the petitioner was not entitled to bail. The court observed that the prosecution had initiated proceedings challenging the release of the co-accused, and the statements of two eyewitnesses consistently implicated the petitioner. Furthermore, the court noted that the trial had already commenced and two prosecution witnesses had been examined. Consequently, the court dismissed the bail petition, emphasizing that the rule of consistency does not automatically apply when the release of a co-accused is itself under legal challenge by the prosecution.
- Does the rule of consistency apply to a bail application when the release of a co-accused is currently being challenged by the prosecution?
- Is a petitioner entitled to bail when eyewitnesses consistently implicate the accused and the trial has already commenced?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 13, Arms Ordinance 1965
- Section 169, Code of Criminal Procedure 1898
MUHAMMAD ALAM, J.---Petitioner, who is involved for the offence of section 302/34, P.P.C. and offence under Section 13 Arms Ordinance, booked through FIR No,06/2014 and FIR No,10/2015, of Police Station Dodishal, District Diamer, seeks his release on bail, through this petition. Previously, petitioner sought similar facility from the court of Sessions Judge Diamer, through B.A. No,31/2015, who, through his order dated 07-07-2015, refused to grant the same facility.
2.Learned counsel for petitioner has written FIR No,39/2015 also in the heading of this petition, but order dated 07-07-2015 of the trial court that he passed in Bail Application No,31/15 does not show said No, of FIR. Therefore, I consider this petition only up to FIR No,06/2014 and FIR No,10/2015, of Police Station Dodishal Diamer. Petitioner is free to move the trial court for grant of bail facility in connection with FIR No,39/2015.
3.Police chalked FIR on written application of FIR lodger, Mr. Noor Salah Khan. In the light of said application, the FIR lodger reported that deceased Usman Ghani and Shah Zaman joined Mr. Sher Khan, for cutting his wheat crops, at the place Makhodan Dodishal. At about 1 pm, there was a firing shot report, and on hearing the same, the FIR lodger went to the house of Sher Khan and found dead body of deceased Usman Ghani on a cot. On questions, Sher Khan and Shah Zaman told that Habibullah (petitioner) and Nabiullah have murdered deceased by opening fires. The motive for the murder was the alleged rape of Mst. Gulshad, wife of Mashar Khan, by deceased.
4.The learned counsel for petitioner mainly contended that the statements of the eye-witnesses were recorded at two different times by the police and there is contradiction between the said two statements of the eye-witnesses. Moreover, the counsel for petitioner was of the opinion that statements of the eye-witnesses are hearsay as they are stating about the occurrence with reference to some ladies. On the other hand, learned Deputy Advocate General argued that trial of the case has commenced and the trial court has so far examined two PWs. The FIR has promptly been chalked.
5. I have thoughtfully considered arguments advanced by the learned counsel for petitioner and learned Deputy Advocate General. In the case in hand, learned counsel for petitioner mainly argued on the aspect of the case that police concerned has released one of the co-accused of petitioner under section 169, Cr.P.C. and pressed for release of the petitioner in the light of rule of consistency. In this connection, learned Deputy Advocate General argued that the prosecution has initiated proceedings against release of the co-accused of petitioner under section 169, Cr.P.C. I have gone through the statements of the two eyewitnesses of the occurrence, who are equally charging petitioner and his co-accused for the occurrence. It is also not disputed that the trial of the case has commenced and the trial court has so far examined two PWs.
6. In these circumstances, I am not inclined to grant bail facility to the petitioner. So this petition stands dismissed. This file be consigned to record.