FARHAD ALAM vs The STATE
The petitioner sought post-arrest bail in a case registered under sections 302, 109, 114, and 34 of the Pakistan Penal Code 1860 in FIR No. 16/2018. The core legal question was whether the petitioner was entitled to bail when not initially nominated in the FIR, implicated later via a supplementary statement, charged with abetment where co-accused were released under Section 169 of the Code of Criminal Procedure 1898, and where the trial had already commenced. The Gilgit Baltistan Chief Court held that the petitioner's case fell under further inquiry pursuant to Section 497(2) of the Code of Criminal Procedure 1898, entitling him to bail as a matter of right notwithstanding the commencement of the trial, particularly as the charge was one of abetment and two co-accused had already been discharged. The key principle laid down is that where an accused's case falls within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898, bail must be granted as a matter of right even if the trial has already commenced or is near completion.
- Whether an accused not nominated in the initial FIR but named in a supplementary statement is entitled to bail when co-accused are released under Section 169 of the Code of Criminal Procedure 1898?
- Does the commencement of a trial disentitle an accused to post-arrest bail when the case otherwise falls under the further inquiry clause of Section 497(2) of the Code of Criminal Procedure 1898?
- Whether the case of an accused charged with abetment stands on a lower pedestal compared to principal accused for the purpose of grant of bail?
- Section 302, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 114, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 169, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
MALIK HAQ NAWAZ, J.---The petitioner stands booked for the offences under sections 302/109/1 14/34, P.P.C. in an FIR No.16/2018 of Police Station Pari Bangla dated 19.05.2018.
2. The learned counsel for the petitioner submitted that the petitioner is not a nominated accused in the FIR, which was lodged against some unknown persons and later on the complainant made a supplementary statement in which he implicated four (04) persons for commission of offence. The learned counsel submitted that out of four nominated persons police released two (02) accused under section 169, Cr.P.C., which means that there was a guess work on the part of complainant and even the subsequent story of the occurrence was not worthy of any credence. The accused has been charged under section 114, P.P.C., which requires further inquiry and the petitioner deserves the concession of bail as there is no worth reliance evidence to connect the petitioner with the commission of offence. The learned counsel relied on 1994 PCr.LJ 746, 1996 PCr.LJ 1171, 2004 PCr.LJ 17, 2018 YLR 208, 2015 GBLR 272, 2018 YLR 2000 and 2001 PCr .LJ 1707
3. On the other hand the learned Dy. Advocate General submitted that challan of the case has been submitted in the Court and trial of the case has been commenced. The grant of bail to the petitioner at this stage will prejudice the case of prosecution. The learned Dy. Advocate General further contended that it is now consistent practice of superior Courts not to allow bail in a case which is fixed for evidence. The offence with which the petitioner/accused is charged entails punishment of life imprisonment/death, which falls within the prohibitory clauses of Section 497, Cr ,P .C.
4. The petitioner/accused is not directly charged in the FIR. The complainant got recorded his supplementary statement in which he nominated four persons for commission of murder of his son, out of which two were found innocent during investigation and were released under section 169, Cr.P.C. The complainant as informed by the learned Dy. Advocate General has not filed any application to any higher authorities of police for setting aside the findings of Investigating Officer nor he opted any other recourse available to him under law for A redressal of his grievances. The case of the petitioner is one of the further inquiry falling under section 497(2), Cr.P.C. When a case becomes as one of the further inquiry , the bail should be granted to an accused as a matter of right and not as a matter of grace. The contention of the learned Dy. Advocate General that trial of the case has commenced, which disentitles the petitioner for concession of bail is misconceived. When case of an accused/petitioner becomes as one of the further inquiry , he should be allowed bail even if the trial has comm enced or if it is at the verge of completion. Practice cannot be given preference over the right. The Courts are custodian of the liberty of the people and it is bounden duty of the Court to exercise discretion in favour of those, whose cases are covered under section 497(2), Cr.P.C. B as there is no concept of advance punishment in Crimina l Justice System. The petitioner has been charged for abetment of the offence. The case of an abettor is always at lower pedestal as compared to the principal accused, who are charged for commission of the offence. All these factors when taken cumulatively has made out the case of the petitioner fit for grant of bail.
5. The petitioner is allowed bail subject to his furnishing bail bonds of Rs.10,00000/- (Ten lac) with local sureties each in the like amount to the satisfaction of trial Court.
6. Cr . Misc. bearing No.173/2018 is disposed of accordingly . File be consigned to record after completion.