NAZAR HUSSAIN SHAH and another vs THE STATE
Applicants Nazar Hussain Shah and Nisar Ahmed sought post-arrest bail in a case registered under sections 302/324/34, Pakistan Penal Code 1860 at Police Station Quaid Abad. The core legal question was whether the applicants were entitled to bail on the ground of further inquiry and the rule of consistency, given that their names were not in the F.I.R., they were identified at a belated stage, and a co-accused facing similar allegations had already been granted bail. The Sindh High Court held that the role ascribed to the applicants was identical to that of the co-accused whose bail was accepted, and allegations regarding a mobile phone and conspiracy warranted further inquiry at trial. The court granted the bail applications, establishing that the rule of consistency applies when similarly placed accused persons seek relief and the prosecution's supplementary material requires further scrutiny.
- Whether an accused person not named in the F.I.R. and implicated at a belated stage is entitled to bail under the rule of consistency if a co-accused with a similar role has been granted bail?
- Does the reliance on unverified mobile phone communication for conspiracy disentitle an accused from post-arrest bail at the pre-trial stage?
- When does the guilt of an accused identified during an identification test parade call for further inquiry under criminal law?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 161, Code of Criminal Procedure 1898
' Applicants Nazar Hussain Shah and Nisar Ahmed have sought bail, through two separate applications mentioned above, in a case registered at Police. Station Quaid Abad for an offence punishable under sections 302/324/34, P.P.C. This order governs both the applications.
2. The facts of the case, as per F.I.R. Lodged by email at Police Station Quaid Abad on 16-6-2000 at 1-44 hours, are that on 15-6-2000 at 9-45 p.m. Complainant Ismail, P.Ws. Mohsin and Ibrahim were sitting in the house of Mst. Hawa Bibi where Umer Jat and Ghulam Nabi Jat armed with pistols and accompanied by three unknown persons appeared and asked Mst. Hawa not to support those persons with whom they had dispute over the matter of fishing in the sea. Umer Jat and Ghulam Nabi Jat fired from their pistols and five bullets hit Mst. Hawa. Bibi while one bullet hit Ibrahim on his leg. They were shifted to Jinnah Hospital, but Mst. Hawa Bibi died on the way. During investigation an identification test parade was conducted in presence of Judicial Magistrate on 14-7-2000 and four persons Chanzeb Nazar Shah (applicant), Sadaqat and Nisar Ahmci (applicant) were picked out by the witnesses including complainant Ismail. Two days later further statement of complainant Ismail was recorded by police wherein he stated that in the identification test parade he had picked out Chanzeb, Azimullah and Muhammad Nisar as the three unknown culprits.
Mohsin son of Ali, Ibrahim and Mohsin son of Muhammad Hussain, in their statements under section 161, Cr.P.C. Recorded on that day, also gave the same names as the three unidentified culprits.
3. It was commonly argued by the learned counsel for applicants that the names of these applicants are not mentioned in the F.I.R. And no active part of making fire at the deceased is assigned to them; and even in the identification test parade no specific role was attributed to them although the identification tests were conducted after a long time. According to them, under the rule of consistency, the applicants be allowed concession of bail as Sadaqat's plea of bail has been accepted on same grounds.
4. Mr. Khalid Shah, learned State Counsel opposed the bail and submitted that there is additional evidence to the effect that Nazar Hussain Shah used a mobile telephone and took part hi conspiracy for commission of the offence.
5. Admittedly, the applicants Nazar Hussain Shah and Nisar Ahmad son of Azizur Rahman (not Muhammad Nisar) were implicated at a belated stage otherwise, as stated in the F.I.R., main accused Umer Jat and Ghulam Nabi Jat were accompanied by three unidentified accused persons and when identification test was held in respect of the accused persons involved in the offence the witnesses nominated the applicants as also Sadaqat Hussain to be the persons who were found outside in a Hundai Taxi. To this extent the role ascribed to the applicants is not different from that of Sadaqat. As regards the use of mobile phone the learned State Counsel relied firstly on the statement of Iqbal Shah and then on that of Kachkol recorded under section 161, Cr.P.C.. It may be mentioned here that Kachkol is owner of the said mobile telephone which has, later on, been disconnected but the evidence of Kachkol seems to be an explanation by him to relieve himself of the responsibility created out of the use of said mobile telephone. Nevertheless, the substance of communication, if any, made through the said mobile has not positively come on record. However, for the purpose of conspiracy the prosecution may rely upon the same at the time of trial but for the time being the guilt of Nazar Hussain Shah calls for further inquiry. Same is the case of applicant Nisar Ahmed.
6. Consequently, following the, rule of consistency and also for the aforestated reasons the applications are granted. Applicants may be enlarged on bail on furnishing surety in the sum of Rs,3,00,000 each and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court. These are the reasons for the short order announced today in Court.
Cited by 2 cases
- ALI BAAD KHAN and anothers vs THE STATE 2006 YLR 256
- DADAN alias DAD MUHAMMAD vs THE STATE 2003 P Cr. L J 1510