AQEEB ALI MEHMOOD Versus State

ORDER

QAZI MUHAMMAD AMIN AHMED, J.--- Aqeeb Ali Mehmood, petitioner herein, seeks admission to post arrest bail in case FIR No. 480 dated 16-11-2016 registered with Police Station Race Course Rawalpindi under sections 392/411 of the Pakistan Penal Code, 1860 on the complaint of Zaheer-ud-Din alleged wherein is that on the eventful day while he was accompanying his wife Nuzhat Andleeb and minor daughter in a Rickshaw, the petitioner armed with a dagger accompanied by Qasim co-accused with 30-caliber pistol, riding on a motorbike intercepted the family and deprived them of two gold bangles, one gold ring and wallet with 5/6 thousands rupees on pistol point. After his arrest, the petitioner pursuant to a disclosure, led to the recovery of gold ornaments as well as a portion of looted cash. Grant of bail is being prayed for on the ground that identically placed co-accused namely Qasim has since been admitted to post arrest bail by a learned Additional Sessions Judge and as such the petitioner is also entitled to the same concession on the ground of requirement of consistency.

2. Heard. Record perused.

3. The petitioner is named in a case of robbery committed in broad daylight in the middest of city; apparently the complainant has no axe to grind in order to falsely implicate him in a heinous crime. The co-accused has been granted bail through an order far from being happy, merely on the ground that he after his remission into custody did not lead to any recovery and as such the petitioner cannot press into service an erroneous favour extended to his comrade in crime. Bail is not to be necessarily granted to an accused merely on the basis of a concession that ought to have been withheld; it would tantamount to repeat an error. In the case of Asif Ayub v. The State (2010 SCMR 1735), it is held as under:-

".....In addition to it, under section 497 read with S.498 the Superior Courts have right to form independent opinion in respect of involvement of an accused notwithstanding the fact that one of the co-accused has been released on bail. So in other words, the provision relating to the grant of bail on the principle of consistency does not apply stricto sensu when they are more than one, therefore, rule of consistency cannot be pressed into service as the case of the accused is not at par with that of his co-accused who had been admitted to bail."

Same view was taken in the case of Muhammad Azim v. The State (PLD 1988 SC 84), relevant portion whereof is advantageously reproduced below:

"After hearing him in this behalf we have come to the conclusion that mere fact that a person who has been allowed bail in the same case (who in our view) should not have been allowed bail, does not justify grant of bail to a person who is otherwise not entitled to it. The argument based on the so-called principle of consistency is repelled".

Given the accusation supported by the statement of witnesses as well as quantum of sentence provided for the crime there is no occasion to admit the petitioner to post arrest bail in the absence of any consideration warranting further inquiry. Consequently, Crl. Misc. No.97-B of 2017 is disallowed.

4. Since a report under section 173 of the Code of Criminal Procedure, 1898 has been submitted, I do not feel inclined to issue notice to Qasim co-accused for recall of his bail, however, the learned trial Court is directed to conclude the trial with a convenient dispatch preferably within a period of three months with a compliance report to the Deputy Registrar (Judl.) of this Bench. Copy of this order be sent to the learned Additional Sessions Judge concerned.

JK/A-28/L Application disallowed.