ALLAH DEWAYA vs STATE
The petitioner sought post-arrest bail in a criminal case registered under Sections 324, 427, 148, 149, and 109 of the Pakistan Penal Code. The core legal question was whether the petitioner was entitled to bail on the grounds of consistency with co-accused who had already been granted bail, coupled with the statutory delay in the conclusion of the trial and incarceration period. The Lahore High Court held that the petitioner's case was at par with his co-accused who had been released on bail and that his continued detention served no useful purpose given the delayed trial. The court laid down the principle of consistency in granting bail, noting that unjustified incarceration cannot be adequately compensated by a subsequent acquittal, whereas the ultimate conviction of a guilty person can repair the wrong caused by a mistaken grant of bail.
- Is an accused entitled to post-arrest bail on the principle of consistency when co-accused facing similar allegations have already been granted bail?
- Does the fact that an injury falls within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898 absolutely bar the grant of bail when the trial is unduly delayed?
- Can prolonged incarceration without trial be considered a ground for releasing an accused on post-arrest bail?
- Section 324, Pakistan Penal Code 1860
- Section 427, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
Allah Dewaya-petitioner seeks his post arrest bail in case. F.I.R. No, 285, dated 9.8.2002, under Section 324/427/148/149 read with Section 109 P.P.C., registered with police station Mehmood Kot, tehsil Kot Addu, District Muzaffargarh, at the behest of one Abdul Wahid.
2. Learned counsel appearing on behalf of the petitioner submits that petitioner has falsely been implicated in this case and that he is behind the bars since 12.8.2002 and is no more required by the police for further investigation. Adds that co-accused of the petitioner, namely, Allah Wasaya, had also been granted bail by this Court, therefore, in view of principle of consistency petitioner is also entitled to be released on bail. Also adds that another co-accused of the petitioner; namely, Allah Ditta has already been granted bail by the Magistrate Section 30 Kot Addu. Lastly, he submits that no progress has been made regarding trial of the accused and not a single witness has been recorded so far.
3. Conversely, learned counsel for the State assisted by learned counsel for the complainant submits that name of the petitioner is mentioned in the First Information Report; that he was armed with lethal weapon with he which he had caused grievous injury to Muhammad Iqbal PW and one of the injury is Jurrah Munaqila, which falls within the prohibitory clause and that provisions of Section 324 P.P.C., are also attracted in this case. Therefore, he is not entitled to be released on bail.
4. I have heard the learned counsel for both the sides and have perused the record carefully.
Admittedly, co-accused of the petitioner, namely, Allah Ditta, who was armed with riffle and had caused two fire-arm injuries to Muhammad Afzal PW, has been released on bail by the lower Court vide order dated 22.11.2003. The petitioner was also armed with pistol and has caused injury to other PW Muhammad Iqbal on his forearm and right elbow, admittedly on non-vital part of the body. It has also been noticed that another co-accused of the petitioner, namely, Allah Wasaya, was granted bail by this Court vide order dated 10.9.2003 and 3rd co-accused Haji Muhammad had also been released on bail by learned Magistrate Section 30. According to prosecution version, the petitioner has caused two fire-arm injuries on the person of Muhammad Iqbal PW, out of which one according to X-ray report is Jurrah Munaqila, which falls within the prohibitory clause of Section 497 Cr.P.C. After minute scrutiny of the record, in my view case of the petitioner also as par with Allah Ditta his co-accused, who has been released on bail. According to principle of consistency petitioner is also entitled to be released on bail at this stage. It has also been noticed that petitioner is behind the bars for the last about sixteen months and trial is not insight. Order sheet reveals that accused are not responsible for the delay in the conclusion of trial. His further detention in jail is not likely to serve any useful purpose to the prosecution in any manner. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of bail granted to him but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case although his-acquittal in the long run. For all these reasons, I am inclined to allow him bail.
5. Accordingly, by accepting this petition, I direct that the petitioner be released on bail, subject to his furnishing bail bonds in the sum of Rs, 2,00,000/- (Rupees two lac) with one surety in the like amount to the satisfaction of trial Court.