ASGHAR KHAN vs THE STATE and 2 others
This matter concerns a post-arrest bail application filed by the petitioner, Asghar Khan, who was implicated in a criminal case involving murder and attempted murder. The petitioner sought bail after lower courts refused his applications, arguing that he was not named in the First Information Report, the occurrence was unseen, no identification parade was held, and co-accused had already been granted bail based on the principle of parity. The core legal question was whether the petitioner was entitled to bail given the evidence collected during the investigation and the status of his co-accused. The Court held that while the petitioner was not named in the initial report, the prosecution had collected sufficient material, including positive forensic reports linking a weapon recovered from the petitioner to the crime, to establish a prima facie connection. The Court rejected the parity argument, noting that the roles attributed to the co-accused differed from the petitioner's. Consequently, the Court dismissed the application, affirming that at the bail stage, only a tentative assessment of evidence is required to determine if reasonable grounds exist to connect the accused to the crime.
- Is the principle of parity applicable to a co-accused if the roles attributed to them are different?
- What is the scope of judicial inquiry at the bail stage regarding the assessment of evidence?
- Does the absence of an accused's name in the First Information Report automatically entitle them to bail?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 120-B, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 13, Arms Ordinance 1965
- Section 497(2), Code of Criminal Procedure 1898
' Asghar Khan, petitioner, is one of the accused involved in case F.I.R. No,309, dated 22-9-2003 registered under sections 302/3241109/ 120-B/34, P.P.C. Read with section 13 of Arms Ordinance at Police Station Cantt. Bannu. He has moved instant application for his release on bail after refusal of the same by the two Courts below vide orders, dated 10-2-2004 and 13-3-2004 respectively.
2. Pithily narrated facts of the case are that on 22-9-2003 at 10-40 hours complainant Rafiullah while in injured condition lodged a report in the Emergency Ward of D.H.Q. Hospital, Bannu to the effect that he was rickshaw driver and on the day of occurrence, a lady hired his rickshaw to take her to Gardanli Galli, Bannu City. When they reached near Masoori Ziarat, a car coming from Miran Shah side stopped for crossing the road. After crossing of the car, he was just to move the rickshaw when a fire was made from their backside which resulted in injury to the lady and the complainant.
Both of them fell down from the rickshaw. In the meanwhile, the complainant noticed two persons on a motorcycle, out of whom, the one sitting behind the driver was having a pistol in his hand. The lady later on succumbed to the injuries. The complainant subsequently learnt that the lady was an Advocate by profession.
3. In support of bail application, Mr. Gauhar Zaman Khan Kundi, Advocate maintained that the petitioner has not been nominated in the F.I.R.; that the alleged occurrence is an unseen one; that no identification parade was conducted in the case and that case of the petitioner is covered by section 497(2), Cr.P.C. Additionally, he urged that co-accused Amir Zada Khan, Khan Zada Khan and Sabir Nawaz have been admitted to bail vide order, dated 15-12-2003, hence the petitioner is also entitled to be released on bail in view of the principle of parity. To substantiate the pleas, he placed reliance on 2002 PCr.LJ 605 and 2001 YLR 2346.
4. Syed Abid Hussain Bukhari, Advocate for the State, opposing the bail application, contended that prosecution is in possession of sufficient material to associate the petitioner with the commission of crime and having regard to facts and circumstances of the case, he is not entitled to the concession of bail.
5. It is a settled principle of law that at bail stage, the Court has only to see whether the accused was connected with the commission of crime or not. For that purpose, only tentative assessment of evidence is to be made and deeper appreciation is not called for. It is the mind of the Court which is to be satisfied that the case under its consideration is fit case or not for grant of bail in line with guidelines covering legal requirements.
6. In the instant case, no doubt it is true that name of the petitioner does not figure in the F.IR..
Lodged by Rafiullah and no one is charged in the report for the murder of Mst. Naadia Kanwal deceased and injury to the complainant but the fact cannot be lost sight of that sufficient material has been collected by the police during investigation of the case to connect the petitioner with the commission of crime. It may be noted here that the petitioner was arrested on 5-10-2003 and a .30 bore pistol alongwith charger containing four live cartridges of .30 bore was recovered from his possession. The pistol and crime-empties were sent to Fire-arms Expert, Peshawar for opinion. The report is in positive. The submission of the learned counsel regarding grant of bail to the petitioner in view of principle of consistency, is also not tenable. The mere fact that co-accused have been released on bail, by. Itself, is no good ground to treat the petitioner similarly. The roles attributed to the co-accused are quite different qua the role assigned to the petitioner. In the circumstances, I find that there are reasonable grounds to believe that the petitioner is apparently associated with the commission of crime which does not entitle him for the benefit of bail. The bail has been refused to the petitioner for valid reasons and I see no justification to take a contrary view and enlarge the petitioner on bail.
' The bail application fails and is, therefore, dismissed.