ALLAHYAR Versus THE STATE
This is a criminal bail application filed by the applicant Allahyar seeking post-arrest bail in Sessions Case No.103 of 2001 arising out of F.I.R. No.80 of 2001 registered under sections 302, 324, 504, 147, 148, and 149 of the Pakistan Penal Code 1860 at Police Station Dadu. The core legal question revolves around whether the applicant is entitled to post-arrest bail where no overt act is attributed to him and a co-accused on identical evidence has already been granted bail, coupled with the State's concession. The Sindh High Court held that considering the admitted absence of any overt act, the existence of prior enmity, the grant of bail to a similarly placed co-accused, and the State's non-objection, the applicant is entitled to bail. The key principle laid down is that rule of consistency applies when co-accused facing identical allegations are granted bail, and the absence of an overt act coupled with further inquiry under section 497(2) of the Code of Criminal Procedure 1898 warrants the grant of bail.
- Is an accused entitled to post-arrest bail when no overt act is attributed and he is alleged to be present empty-handed?
- Does the grant of bail to a co-accused on identical evidence entitle another accused to bail under the rule of consistency?
- Whether bail should be granted when the State concedes to the application in circumstances calling for further inquiry?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 504, Pakistan Penal Code 1860
- Section 147, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
ORDER
1. Granted but subject to all just exceptions.
2. The facts leading to present application for bail are that applicant/accused is facing trial in Sessions Case N0.103 of 2001 before the learned Sessions Judge, Dadu under sections 302, 324, 504, 147, 148 and 149, P.P.C., which arose out of F.I.R. No.80 of 2001 of Police Station Dadu.
2. The brief facts of the prosecution case as disclosed in the F.I.R. lodged by Ali Asghar Jamali on 3‑6‑2001 are reproduced hereinbelow:‑‑
3. "Report is that I am Zamindar. About 9/10 years back Majeed brother of Sobdar and his father Malho Khan were murdered, in that case our relative Allah Dino son of Guhram was challaned. Due to which Sobdar and others have been shifted towards Bandhi, District Nawabshah from Kachho and Allah Dino settled in our village. Today I and my relatives i.e. (1) Allah Dino son of Guhram and his father Guhram and (3) Anis son of Allah Dino Jamah came to Dadu for our personal work, when at about 11‑45 hours we reached near the shop of Mir Jamali, accused Sobdar son of Malho Khan (2) Ghulam Hussain son of Ghulam Muhammad Jamali (3) Dhani Bakhsh son of Muhabat Jamali (4) Allah Yar son of Malho Khan Jamali and (5) Mazar son of Punjhoon Khan Jamali were coming in front of us. On coming neater accused Sobdar abused us and asked that except Allah Dino, others should run away as he will kill him. He took out pistol from the fold of his trouser and straightly fired at Allah Dino who raised cries on receiving bullet injuries and fell down. In the meanwhile Ghulam Hussain took out pistol from his fold and fired at Guhram with intention to kill him who also fell down by raising cries. We due to fear ran and raised cries. Because of city, many people gathered there and accused ran away towards northern side street. We went and saw Allah Dino. He sustained injuries on head and in front of his neck, and Guhram had injuries on both legs, they were bleeding. We removed injured to Civil Hospital, Dadu. On the way Allah Dino died. Leaving the corpse of deceased Allah Dino and injured Guhram at hospital, now I have come and report that abovesaid accused with their common intention duly armed, due to old enmity, accused Sobdar killed the Allah Dino by pistol shots and accused Ghulam Hussain caused serious injuries to Guhram by pistol shots. I complain, investigation may be made."
4. The applicant/accused applied for bail before the trial Court but the same was declined by impugned order, dated 16‑11‑2001.
5. I have heard learned counsel appearing on behalf of the applicant/accused and learned Additional Advocate‑General for the State. The latter concedes to the grant of bail to the applicant/accused:
6. The perusal of material placed on record shows that enmity is existing between the parties. The allegation against the applicant/accused is that he was present at the spot empty‑handed and to overt act whatsoever has been ascribed to him. Co‑accused Dhani Bux Jamali on identical evidence has been already granted bail by this Court on 19‑9‑20001 (Criminal Bail Application No.421 of 2001).
7. Looking towards the peculiar facts and circumstances of the case and no objection raised by the learned counsel appearing on behalf of the ? State bail is granted to the applicant/accused in the sum of Rs.2,00,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.
8. H.B.T./A‑299/K ?????????
9. Bail granted.