AKBAR ALI vs The STATE and another
This criminal petition is directed by the petitioner seeking post-arrest bail in case FIR No.339/2011 registered for offences under Sections 302, 324, 148, 149, 337F(v), and 337F(iii) of the Pakistan Penal Code 1860. The core legal questions involve whether the petitioner is entitled to bail on the grounds of being placed in column No.2 of the police report under Section 173 of the Code of Criminal Procedure 1898 after being found innocent during investigation, and whether the rule of consistency applies when a co-accused with an identical role has been granted bail. The Lahore High Court held that the petitioner is entitled to bail, observing that nothing incriminating was recovered during physical remand, the Investigation Officer placed his name in column No.2, and a co-accused with an identical role was granted bail by the Supreme Court of Pakistan. The key principles laid down are that an accused whose name is placed in column No.2 of the report under Section 173 Cr.P.C. and not recommended for trial cannot ordinarily be dubbed as an ordinary accused, and that bail should be granted on the rule of consistency where a co-accused with an identical role has already been admitted to bail.
- Is an accused whose name is placed in column No.2 of the police report under Section 173 of the Code of Criminal Procedure 1898 entitled to post-arrest bail?
- Whether bail can be granted on the principle of rule of consistency when a co-accused with an identical role has already been admitted to bail?
- Does the lack of recovery of any incriminating material from an accused during physical remand form a valid ground for the grant of bail?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 337F(v), Pakistan Penal Code 1860
- Section 337F(iii), Pakistan Penal Code 1860
- Section 173, Code of Criminal Procedure 1898
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Through the instant petition the petitioner seeks his post-arrest bail in case FIR No.339/2011, dated 03.10.2011, offence under Sections 302, 324,148, 149, 337 F(v), 337F(iii), P.P.C., registered with Police Station, Kaleki Mandi, District Hafizabad.
2. Facts of the case already stand mentioned in Crl. Misc. No.4070-B/2012, whereby bail petition of co-accused of the petitioner namely Zaheer Akram, was dismissed by a learned single Bench of this Court in terms of order dated 19.04.2012, therefore,. there is no need to repeat the same here.
3. Learned counsel for the petitioner submits that the petitioner has falsely been implicated in the instant case by the complainant against the actual facts and circumstances with ulterior motives.
It is argued that despite remaining on physical remand with the police for a considerable period, nothing incriminating could be recovered from the petitioner. It is next argued that the accusations leveled in the crime report against the petitioner were found false and as such he was found innocent by the police after thorough investigation and his name was placed in column No.2 of the report under Section 173, Cr.P.C. Learned counsel vehemently contends that co-accused of the petitioner namely Zaheer Akram, having an identical role, has already been admitted to bail by the august Supreme Court of Pakistan in terms of order dated 18.05.2012 through Crl. Petition No.343- L/2012, therefore, the petitioner's case being on equal footing, he is also entitled to the same relief.
4. As against above learned Deputy Prosecutor General has vehemently opposed this petition. It is contended that the petitioner is nominated in the FIR with a specific role. But frankly conceded that the petitioner was found innocent by the police during investigation and his name has been placed in column No.2 of the report under Section 173, Cr.P.C. The learned Deputy Prosecutor General further concedes that role of the present petitioner is at par to that of co-accused namely Zaheer Akram, who has already been admitted to bail by the august Supreme Court of Pakistan.
5. Arguments advanced pro and contra have been heard. I have also gone through the record.
6. Admittedly the petitioner is named in the FIR with the allegation that he along with his co- accused resorted to indiscriminate firing upon the complainant party, however, I am afraid this Court has to see from the facts and circumstances whether case against the petitioner to the extent of grant of relief prayed for is made out or not. The allegation against the petitioner is of generalized/collective nature. Bare reading of the crime report itself reflects previous hostility between the parties. Despite remaining on physical remand with the police for a considerable time, nothing incriminating could be recovered by the police from the present petitioner, rather he was found innocent by the Investigation A Officer and his name was placed in Column No.2 of the report under Section 173, Cr.P.C. Keeping in view the dictum of law laid down by the august Supreme Court of Pakistan in the case of Brig. (Retd.) F.B. Ali and another v. The State (PLD 1975 Supreme Court 506), wherein it has been held that a person whose name is placed in column No.2 of the report under Section 173, Cr.P.C. and not recommended to be tried by the court cannot be dubbed as an accused and as such the petitioner has made out a good case for grant of relief prayed for. Moreover, co-accused Zaheer Akram having identical role has already been admitted to bail by the august Supreme Court of Pakistan through Crl. Petition No.343-L/2012; therefore, keeping in view the ratio decidendi of august Supreme Court of Pakistan in the case of Muhammad Fazal alias Bodi v. The State (1979 SCM R 9), the petitioner is also entitled to the concession of bail on the principle of principle of rule of consistency.
7. Resultantly the instant petition is accepted and the petitioner is admitted to bail after-arrest subject to his furnishing bail bonds in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of the learned trial court.
MH/A-36/L