Shehzad Khan alias Nomi and another vs The State
The petitioners sought post-arrest bail in Criminal Miscellaneous No. 226 of 2019 arising out of FIR No. 65 of 2019 registered under sections 324, 285, 290, and 34 of the Pakistan Penal Code at Police Station Airport Gilgit, after their bail plea was dismissed by the Additional Sessions Judge Gilgit. The core legal question was whether the petitioners were entitled to post-arrest bail on the grounds of consistency with a co-accused released under section 169 of the Code of Criminal Procedure and whether their case fell within the scope of further inquiry under section 497(2) of the Code of Criminal Procedure. The Gilgit Baltistan Chief Court held that since a co-accused attributed a similar role was released under section 169 of the Code of Criminal Procedure, and given the absence of a medical certificate on the file to substantiate the FIR allegations, the determination of intention to kill warranted further inquiry at trial. The court laid down the principle that where material aspects such as medical substantiation are lacking and co-accused with identical roles are granted relief, the case qualifies for further inquiry under section 497(2), Code of Criminal Procedure, making the accused eligible for post-arrest bail.
- Does the release of a co-accused by the police attract the law of consistency for granting post-arrest bail to remaining accused?
- Whether absence of a medical certificate on record brings a case under the scope of further inquiry for bail purposes?
- Does an offence carrying ten years rigorous imprisonment necessarily bar the grant of bail when intention to kill requires trial determination?
- Section 324, Pakistan Penal Code 1860
- Section 285, Pakistan Penal Code 1860
- Section 290, 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 petitioners filed the instant Criminal Miscellaneous No. 226 of 2019 for grant of post arrest bail arising out of FIR No.65/2019 under sections 324/285/290/34, P.P.C. registered at Police Station Airport Gilgit after having been failed to obtain the concession of bail from the Court of learned Additional Sessions Judge Gilgit.
2. The brief facts of the case have been highlighted in para 02 of the impugned judgment, which para is re-produced as under:- "Brief facts of prosecution's case according to FIR are that petitioners/accused along with co- accused namely Shoaib attempted to commit murder of complainant Khaliq Jan resident of Kashrote by firing on him. Bullet crosses by touching forehead of complainant and luckily complainant survived. Hence FIR No.65/2019 has been registered in Police Station Airport Gilgit under sections 324, 290 and 285/34 P.P.C on written application of complainant/victim."
3. The learned counsel for the petitioners submitted that the case is false and an afterthought story has been narrated in the FIR. One of the co-accused namely Shoaib, who is attributed the similar role in the FIR has been released by the local police under section 169, Cr.P.C. Per learned counsel the case of the petitioners is identical to the case of the accused Shoaib, hence law of consistency is fully attributed in the case. There was no apparent motive to commit murder of the complainant and intention to kill is completely lacking in the case of the petitioners, which falls within the scope of further inquiry falling under section 497(2), Cr. PC. Lastly that the petitioners are non convict and non more required for the purpose of investigation.
4. On the other hand the learned Dy. Advocate General submitted that the petitioners/accused are directly charged in the FIR, with a specific role of opening fire shots on the victim, who sustained bullet injury on his forehead, which is the most vital part of the body. The offence entails 10 years' R.I, which fall within prohibitory clause of section 497, Cr.P.C. The petitioners/accused does not deserve the concession of bail.
5. The petitioners are directly charged in the FIR but one of the co-accused namely Shoaib has been released by the police under section 169, Cr.P.C. No medical certificate of the victim is available on the file, which may substantiate the allegations mentioned in the FIR. The "intention to kill" will be determined at the time of trial after recording of evidence by the trial Court. The case of the petitioners is one of the further inquiry. The petitioners are admitted to bail subject to their furnishing bail bonds of Rs. 500000(five lac) with two sureties each in the like amount to the satisfaction of the learned trial Court.
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