Chelo and another vs The State
This matter arises from a post-arrest bail application filed by applicants Chelo and Herchand seeking bail in Crime No. 04 of 2019 registered at Police Station Taluka Umerkot under Sections 376 and 34 of the Pakistan Penal Code 1860. The core legal question concerns whether the applicants, whose alleged role was limited to facilitation and standing guard while the main co-accused allegedly committed rape, are entitled to post-arrest bail pending trial. The Sindh High Court held that the applicants' role was one of further inquiry, noting that the victim was able to raise cries which attracted witnesses, and that a tentative assessment of the record warranted relief. The court granted post-arrest bail to the applicants, laying down the principle that the question of sharing a common intention and the tentative assessment of material for bail require avoiding deeper appreciation of evidence at the bail stage.
- Whether an accused alleged to have played a role of facilitation in a crime under Section 376 read with Section 34 of the Pakistan Penal Code 1860 is entitled to post-arrest bail when their actual participation requires further probe?
- To what extent should a court conduct a deeper appreciation of evidence versus a tentative assessment while deciding a post-arrest bail petition?
- Does the question of sharing a common intention generally fall within the scope of further inquiry warranting the grant of bail?
- Section 376, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
SALAHUDDIN PANHWAR, J.--Aijaz Ahmed Shaikh, SSP Umerkot files his reply to show-cause notice, taken on record. Perused and found' satisfactory. Accordingly, show-cause notice issued in terms of order dated 15.07.2019 is hereby recalled.
2. Through instant bail application, applicants seek post-arrest bail in Crime No.04/2019, under sections 376 and 34, P.P.C., registered at Police Station Taluka UmerKot.
3. As per FIR, allegations against the Applicants are that on 04.02.2019 at about 1200 hours inside Devi Jungle, situated at .the land of Haji Haut Khan Babar, Taluka Umer Kot, Applicants Chelo and Herchand while making daughter of complainant namely Mst. Assoo, facilitated co-accused Saleem to commit rape upon the victim.
4. At the outset, learned' counsel for the applicants contends that main allegation is against accused Saleem Babar whereas it is alleged that applicants extended pressure to the victim for completion of offence. Such aspect is yet to be determined by the trial court hence applicants are entitled for bail.
5. Learned A.P.G. affirms the factual aspect that both the applicants' role is that of alleged help of the main accused.
6. Perusal of the FIR reflects that accused Saleem Babar committed rape with victim whereas applicants were standing there. On her cries, witnesses reached there because of which accused persons escaped. The applicants / accused have, prima facie, not been alleged to have actively played any role in commission of the offence but their alleged presence has been claimed as facilitation. As per FIR itself the victim despite alleged force of the applicants I accused was in a position to attract people by making cries which she did and in consequence to such attraction the applicants/accused did nothing but preferred to escape away. All these, prima facie, aspects reflecting from the FIR themselves make the allegation of providing facilitation as one of further probe. In the case of Aamir Bashir v. State 2017 SCMR 2060 the honourable Apex Court reaffirmed guiding and binding principle in deciding bail pleas as:-
7. This Court in the case of Khalid Javed Gillan v. State (PLD 1978 SC 256) has laid down guiding and binding principles which may be cited as follows: i. That while deciding bail petitions only tentative assessment of the material and facts available on record is to be made and deeper appreciation of the same shall be avoided; ii. That any fact which may not be sufficient to cast doubt of absolute nature on the prosecution case but equally sufficient to be considered for grant of bail, cannot be lightly ignored; Even otherwise, question of sharing common intention is normally considered as one of further probe because the same is always dependent upon conclusion to be drawn from circumstances.
In consequence to above discussion, I am of the view that applicants / accused have made out a case for grant of bail who, otherwise, are in judicial custody and not required for any purpose of investigation. Accordingly, the applicants are admitted to post arrest bail subject to their furnishing solvent surety in the sum of Rs.50,000/- (Fifty thousand) each and P.R. Bond in the like amount to the satisfaction of the trial court.
Cited by 1 case
- Aziz-Ur-Rehman alias Babul vs The State 2022 PCRLJ 828