KANWAR KHALID YOUNUS and another vs THE STATE
This matter arises from a bail application moved on behalf of the applicants involved in Crime No. 29 of 1994 registered at Police Station Malir City under sections 435, 427, and 109 of the Pakistan Penal Code. The core legal question concerns whether the applicants are entitled to post-arrest bail where one applicant was allegedly apprehended on the spot setting public property on fire during a political funeral, and whether the rule of consistency applies when co-accused have been granted bail. The Sindh High Court held that the offence carrying a maximum sentence of seven years does not ipso facto entitle an accused to bail as a matter of right in non-bailable cases, and that the rule of consistency does not apply to benefit an accused who is clearly not entitled to bail based on direct spot-arrest involvement. The court laid down the principle that the mere fact a co-accused was improperly granted bail does not justify extending bail to another person otherwise not entitled to it, and directed the trial court to expedite proceedings.
- Does a maximum sentence of less than ten years ipso facto entitle an accused to bail as a matter of right in a non-bailable case?
- Does the rule of consistency justify granting bail to an accused person when a co-accused was improperly granted bail?
- Is an accused apprehended on the spot for torching public property entitled to post-arrest bail?
- Section 435, Pakistan Penal Code 1860
- Section 427, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
ORDER
1. ' This bail application has been moved on behalf of the present applicants who are involved in the case registered as Crime No,29 of 1994 at Police Station Malir City under section 435/427/109, P.P.C.
2. Allegations as contained in the F.I.R. Are that on the date of the incident the complainant was on patrol duty in the police mobile and when he reached Khyber Coach Stand at 03-55 hours he saw that five persons whose names and addresses were not known had put a Coach on fire using petrol. The fire was extinguished with the help of the driver Zafarullah. The said persons attempted to run away and were chased by the police party and in such chase the present applicant No,2 was apprehended on the spot who disclosed his name as Irshad Ali and also informed that his other companion had run away. This incident had taken place in the funeral ceremony of deceased Tanveer Hussain a leader of ethnic party. It is also in the F.I.R. That the present applicant No,1 along with 8 other leaders of the party had caused provocation and raised provocative slogans which infuriated the mob. However, the case, after arrest of the accused, was sent up. Bail application was moved on behalf of the present applicants which was rejected. Hence this bail application.
3. ' We have heard Mr. Zaheer Ahmed Khan, the learned counsel for the applicants. He has submitted that the offence under section 435, P.P.C. Is the only scheduled offence as given in the F.I.R. And is punishable only by seven years which does not fall under the prohibitory clause and therefore, the applicant would be entitled to grant of bail. The learned counsel has also pointed out that some of the co-accused, who are sitting legislators, have already been granted bail and therefore the rule of consistency requires that present applicants should also be granted bail. Mr. K.M. Nadeem appearing for the State has vehemently opposed the bail application.
4. We have considered the submission of the learned counsel. At the very outset we may observe that offence under section 435, P.P.C. Punishable with a maximum sentence of seven years only, is a non-bailable offence and thus A maximum sentence being less than 10 years would not ipso facto entitle a person to grant of bail as a matter of right in a non-bailable case. The applicant has to show if a case for grant of bail exists in his favour. Under the provisions of Suppression of Terrorist Activities (Special Courts) Act, the burden is on the accused to show that he is not guilty of alleged offence if he is arrested in such circumstances. In the present case applicant No,2 is arrested on the spot while putting to torch the public property. In such case the culprit can hardly be entitled to any sympathetic consideration.
5. As regards the rule of consistency, the learned AA.-G. Has placed reliance on, the case of Muhammad Azim v. The State (PLD 1988 SC 84) wherein their Lordships have observed that "mere fact that a person who should not have been allowed bail, was allowed bail in the same case does not justify grant of bail to a person who is otherwise not entitled to it". As observed above one of the applicants had been arrested on the spot and, thus he would not have been entitled to grant of bail.
6. The third ground raised by the learned counsel is that in spite of lapse of considerable time the trial Court is not proceeding with the present case. In these circumstances we would direct the trial Court to frame the charge and examine at best two of the eye-witnesses within a period of six weeks from the date of this order. The applicants would be at liberty to move a fresh bail application after such evidence is recorded if the grounds for grant of bail arise. With these observations this bail is dismissed.
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