Muhammad Iqbal and another vs The State and another
This petition for post-arrest bail arises from F.I.R. No. 189/2020, involving charges under Sections 302, 324, 148, 149, 337-F(i), 337-F(iii), 337-F(vi), 337-A(i), 337-A(ii), and 337-L(2) of the Pakistan Penal Code 1860. The core legal question was whether the petitioners were entitled to bail despite the allegations against them, given that co-accused persons with identical roles had already been granted bail. The Court held that the petitioners were entitled to post-arrest bail. The ratio of the decision rests on the "rule of consistency," which dictates that where co-accused persons attributed with similar or identical roles in an F.I.R. have been granted bail, the petitioner cannot be denied the same relief merely because the police investigation found them guilty. The Court further noted that the evidentiary value of alleged recoveries and the issue of vicarious liability under common intention are matters to be determined by the trial court after recording evidence, rather than at the bail stage. Consequently, the petition was accepted subject to the furnishing of bail bonds.
- Does the fact that an accused was found guilty during the police investigation justify denying bail when co-accused with identical roles have been granted bail?
- Can the rule of consistency be applied to grant bail to an accused when co-accused persons with similar roles have already been released on bail?
- Should the evidentiary value of recoveries be determined at the bail stage or during the trial?
- 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 337-F(i), Pakistan Penal Code 1860
- Section 337-F(iii), Pakistan Penal Code 1860
- Section 337-F(vi), Pakistan Penal Code 1860
- Section 337-A(i), Pakistan Penal Code 1860
- Section 337-A(ii), Pakistan Penal Code 1860
- Section 337-L(2), Pakistan Penal Code 1860
ORDER
Through instant petition, Muhammad Iqbal and Sajid alias Kali (petitioners/accus ed persons) have sought post- arrest bail in case arising out of F.I.R. No.189/2020 dated: 05.09.2020 registered under Sections: 302, 324, 148, 149, PPC (subsequently offences under Sections: 337-F(i), 337-F(iii), 337-F(vi), 337-A(i), 337-A(ii), 337-L(2) PPC also added) at Police Station: Jhok Utra, District: Dera Ghazi Khan.
2. After hearing learned counsel for the parties, learned Deputy Prosecutor General and going through the available record with their able assistanc e, it has been noticed that as per contents of F.I.R., petitioners have not caused any injury to Nasir (deceased of case); Muhammad Iqbal (petitioner No.1/accused) while allegedly equipped with pistol, made two firearm shots which hit at left leg of Arslan Bashir (one of the injured), whereas Sajid alias Kali (petitioner No.2/accused) allegedly equipped with pistol, also made two firearm shots which hit at left leg and right leg of Muhammad Sajid Abdullah (complainant of case).
It has been further noticed that Sajjad (co-accused) allegedly inflicted two stick blows at right eye and lip of Ahmad (one of the injured) and Muhammad Akbar (co-accused) allegedly gave blow with butt of Kalashnikov at left shoulder of Amir (one of the injured) and also gave blow with butt of Kalashnikov at left side of head of Khurram Iqbal (one of the injured), however , they both aforementioned co-accused persons were allowed post-arrest bail, in the case by this Court vide order dated : 25.11.2020 passed in Crl. Misc. No.6722-B of 2020 (copy whereof is appended with instant petition at Page No.14-15); Naveed (co-accused) who allegedly gave hatchet blow at forehead of Aamir (one of the injured) was granted post-arrest bail on 07.12.2020 by learned Additional Sessions Judge, Dera Ghazi Khan (copy whereof is appended with instant petition at Page No.19-20), Allah Wasaya (co- accused) who made two firearm shots with Kalashnikov which hit at right leg of Amir (one of the injured) was granted post-arrest bail on 19.12.2020 by learned Additional Sessions Judge, Dera Ghazi Khan (copy whereof is appended with instant petition at Page No.37), whereas Muhammad Madni (one of co-accused) who made two firearm shots with pistol which hit at right leg of Muhammad Sajid Abdullah (complainant of case) was also granted post-arrest bail vide order dated: 14.12. 2020 passed by learned Additional Sessions Judge, Dera Ghazi Khan (copy whereof is appended with instant petition at Page No.31- 32). It goes without saying that learned Deputy Prosecutor General after going through available record and assisted by learne d counsel for the complainant, apprises that aforementioned all bail granting orders are still intact and holding the field. Admittedly , role alleged against present petitioners in the F.I.R. is similar to the role alleged against Allah Wasaya and Muhammad Madni (co-accused persons, mentioned above).
As far as contention of learned Deputy Prosecutor General assisted by learned counsel for the complainant that during investigation concession was extended by Investigating Officer to Allah Wasaya and Muhammad Madni (co- accused persons, mentioned above), is concerned, same cannot create any distinction between the case of present petitioners and Allah Wasaya, Muhammad Madni (co-accused persons, mentioned above) for the purpose of bail because role alleged against all four of them, in the F.I.R., is similar/identical and in this regard, case of "Zill- e-Husnain Tipu versus The State" (2000 P.Cr.R. 602) can be safely referred and relevant portion whereof is hereby reproduced:- "It is not disputed by the learned couns el for the State that three co-accused of the petitioner who had been attributed in the FIR a role identical to that of the petitioner have already been admitted to bail by the learned trial Court. The only distinction made by the learned trial Court in the matter of bail as far as the petitioner is concerned was that the petitioner had been found to be guilty in the final investigation conducted by the police . In the peculiar circumstances of this case it is difficult to hold that the said distinction was either justified or valid for the purposes of bail as there was absolutely no distinc tion available in the roles allegedly played by the petitioner and his co- accused in the occurrence in question."
(emphasis added)
Therefore, case of present petitioners is also one of grant of bail in the light of "rule of consistency".
Although, learned Deputy Prosecutor General under instructions of police official, present in Court and after himself going through available record apprises that 12 bore pistols have been allegedly recovered from present petitioners but no empty of any 12 bore weapon has been found from the place of occurrence, therefore, evidentiary value of said recovery shall be determined by the learned trial court after recording of evidence.
Learned Deputy Prosecutor General under instructions of police official, present in Court and after himself going through record further apprises that cross-version case was also registered on the application of Allah Wasaya (co- accused, mentioned above) against present complainant party , which is still intact and stood established during investigation. It goes without saying that injuries sustained by Allah Wasaya (complainant of cross-version) were suppressed in the F .I.R. of the case.
As far as sharing common intention/vicarious liability of the petitioners is concerned, same shall also be answered by the learned trial court after recording evidence. However , when aforementioned circumstances are taken into consideration in totality , then case of grant of post-arrest bail to the petitioners, has been made out.
3. In view of what has been discussed above, instant petition for grant of post arrest bail is allowed/accepted ; Muhammad Iqbal and Sajid alias Kali (petitioners) are admitted to post-arrest bail in the case, subject to their furnishing bail bonds in the sum of Rs.1,00,000/- (Rupees one hundred thousand only) each with one surety each in the like amount to the satisfaction of learned trial court.
4. It is, however , clarified that observations mentioned above are just tentative in nature, strictly confined to the disposal of instant bail petition and shall have no bearing upon trial of the case.