Zeeshan S/o Gul Hussain vs The State & another
This matter arises from a petition for post-arrest bail filed by Zeeshan against the State, involving offences under sections 302, 324, 427, and 34 of the Pakistan Penal Code 1860, registered vide FIR No. 1039/23 at Police Station Faqirabad, Peshawar. The core legal question is whether the petitioner is entitled to post-arrest bail in a murder and attempt to murder case, notwithstanding his prolonged absconsion and the role attributed to him, particularly in light of the rule of consistency given that a co-accused had already been granted bail. The Supreme Court of Pakistan held that upon a tentative assessment of the material, the case against the petitioner falls within the ambit of further inquiry, and the rule of consistency applies due to the bail granted to the co-accused. The Court laid down the key principle that mere absconsion of an accused for a considerable period cannot, by itself, serve as a sole basis to refuse post-arrest bail when the case otherwise falls within the scope of further inquiry and the principle of consistency is attracted.
- Whether mere absconsion of an accused for several months is sufficient to refuse post-arrest bail when the case otherwise falls within the ambit of further inquiry?
- Does the grant of bail to a co-accused entitle another accused to post-arrest bail under the rule of consistency?
- Can post-arrest bail be granted on a tentative assessment of the record when prosecution witnesses have not yet been examined at trial?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 427, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
NAEEM AKHTAR AFGHAN, J. The petitioner is seeking post-arrest bail u/s 302/324/427/34 PPC in FIR No. 1039/23 lodged with Police Station (PS) Faqirabad, Peshawar on 20 August 2023 by Qaiser Jamal s/o Syed Jamal (Complainant) with regard to the occurrence of 15:45 pm dated 20 August 2023 with the statement that on the property of Aukaf situated in Qazi Abad he has a dispute with his relative Anwar and case is pending before the Court. At 11:00 am the Aukaf employees and police came and got the construction work stopped and the Baithek was locked by the Aukaf employees. When the police and Aukaf employees returned, the petitioner alongwith co-accused Sher Ali and Shahab Kamal came with firearms, they broke the lock of Baithek and started hue and cry with inhabitants of the Mohallah. In the meanwhile he alongwith his brother Shahid Jamal and sons Haider Jamal and Kashif Jamal reached there. They were fired upon by the above four accused with intention to commit their murder. Due to firing of the accused, his brother Shahid Jamal received firearm injury on his neck while his son Haider Jamal received injury on his left hand. Both the injured were taken to the hospital. The injured Shahid Jamal succumbed to the injuries on his way to the hospital.
2. After hearing learned counsel for the petitioner, learned Additional Advocate General, KPK and learned counsel for the complainant, we have perused the available record which reveals that the petitioner remained absconder for almost seven months.
3. Neither injury statement of the alleged injured Haider Jamal was prepared nor there is any medical report about his alleged firearm injury. No recovery of firearm has been effected from the petitioner during investigation. On completion of investigation Challan has been submitted and the trial has commenced. Charge has been read over to the petitioner and co-accused Syed Shahab Ali Shah by the Trial Court but so far statements of the prosecution witnesses have not been recorded at the trial.
4. Co-accused Syed Shahab Ali Shah has already been granted post arrest bail by this Court vide order dated 4 December 2023.
5. On the basis of tentative assessm ent of the material available on record the case against the petitioner falls within the ambit of further inquiry.
Due to grant of post-arrest bail to co-accused Syed Shahab Ali Shah by this Court, on the basis of rule of consistency as well, the petitioner is entitled for grant of post-arrest bail.
6. In view of the above circumstances, mere absconsion of the petitioner for almost seven months cannot be made a basis to refuse him post-arrest bail.
7. For the above reasons, while granting leave, the petition is converted into appeal and same is accepted. The petitioner is granted post-arrest bail u/s 302/324/427/34 PPC in FIR No. 1039/23 PS Faqirabad, Peshawar subject to furnishing surety in the sum of Rs.200,000/- with PR bond of like amount to the satisfaction of the Trial Court.
The observations made hereinabove are tentative in nature and same shall not influence merits of the case at the trial.
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