JAVAID ANWAR vs THE STATE
This matter arises from a bail application filed by Javaid Anwar seeking post-arrest bail in a case registered under sections 365, 342, and 324 of the Pakistan Penal Code read with section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance 1979. The trial court had initially rejected the bail application primarily on the grounds of a confessional statement implicating the applicant and the applicant's prolonged absconsion as a fugitive from law. The core legal question revolved around whether bail ought to be granted to an accused when co-accused persons have already been released on bail and the evidentiary value of a co-accused's confessional statement against the applicant. The Sindh High Court held that while absconsion is a valid consideration, the principle of consistency applies since co-accused persons were already granted bail, and a confessional statement of a co-accused has limited evidentiary value at the bail stage. Consequently, the court admitted the applicant to post-arrest bail, laying down the principle that the rule of consistency must be followed regarding co-accused bail orders notwithstanding the applicant's prior absconsion, subject to furnishing heavy surety.
- Whether post-arrest bail can be granted on the principle of consistency when co-accused persons have already been released on bail?
- Does the prolonged absconsion of an accused entirely bar the concession of post-arrest bail?
- What is the evidentiary weight of a co-accused's confessional statement against an applicant at the bail stage?
- Section 365, Pakistan Penal Code 1860
- Section 342, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance 1979
- Section 87, Code of Criminal Procedure 1898
- Section 88, Code of Criminal Procedure 1898
ORDER
1. Exemption granted subject to all just exceptions.
2. The F.I.R. In this case was registered on 28-6-1995 for offences under sections 365/342/324, P.P.C.
Read with section 17(3) of E.H.O. The learned Ilnd Additional Sessions Judge, Karachi, West rejected the bail application of applicant on 27-11-1999 mentioning as under:-- ' "Admittedly accused Arshad in his statement before Magistrate implicated the accused as his accomplice and such confessional statement can be used as circumstantial evidence against accused applicant that the name of accused applicant was shown as absconder in the challan and proceedings under sections 87 and 88, Cr.P.C. Were also taken against him in the year 1996 and he remained absconder for long and was only arrested recently on 19-6-1999. The charge against the accused has also been framed. In such circumstances accused applicant being fugitive of law and the Court in my humble opinion at this stage is not entitled to the concession of bail and the same is declined."
' The learned Advocate for applicant has requested for bail on the ground that name of applicant does not appear in the F.I.R. And there is no evidence to connect the applicant accused with the alleged offence excepting, the confessional statement of co-accused Muhammad Arshad and conviction cannot be based on such statement. Prosecution examined Orangzeb the victim of the case and he has stated that the accused had muffled faces and he could not identify them. Co- accused have already been granted bail by the trial Court and the case of present applicant is identical to the case of accused released on bail. The applicant is entitled to bail on ground of principle of consistency. Co-accused Muhammad Arshad who is alleged to have been arrested on the spot did not mention name of the applicant. He relied on decisions reported in 1997 SCMR 9, 1996 PCr.LJ 978, 1991 SCM R 322 relevant on 326, PLD 1991 FSC 53, 1977 SCM R 292, 1998 M LD 1549, 1992 PCr.LJ 1910 and 1989 PCr.LJ 1110.
' Mr. Muhammad Ismail Memon, learned State Counsel supported the order of trial Court and has opposed the grant of bail to applicant.
The trial Court rejected the bail application of applicant on two grounds. Firstly that co-accused Arshad had named him in his confessional statement. The learned counsel has relied on decision reported in PLD 1991 FSC 53. In view of this decision reason given by learned trial Judge cannot be accepted on this point. The second ground that was considered by the trial Court was absconsion of the accused applicant. The F.I.R. Was registered on 28-6-1995 and the applicant was arrested on 19-6-1999. This ground may be correct but then heavy surety can be imposed. As co-accused have been granted bail the 'principle of consistency will have to be followed. I, therefore, grant bail to applicant subject to furnishing of surety in the sum of Rs,2,00,000 (Two lacs only) and P.R. Bond in the like amount to the satisfaction of trial Court.
Cited by 2 cases
- NIAZ vs THE STATE 2007 YLR 2458
- RAHIM BUX Versus State 2005 YLR 1544