AZEEM and others vs THE STATE
This matter involves two consolidated criminal miscellaneous petitions seeking post-arrest bail in a case registered under sections 302, 460, 412, and 34 of the Pakistan Penal Code 1860 arising from an FIR at Police Station Chunian, District Kasur. The core legal question concerns whether the petitioners are entitled to post-arrest bail when they were not named in the initial FIR, their names surfaced via a supplementary statement based on hearsay, no test identification parade was conducted, and a similarly situated co-accused had already been granted bail. The court held that the case against the petitioners called for further inquiry into their guilt under Section 497(2) of the Code of Criminal Procedure 1898, making bail a matter of right rather than grace, which prevails over considerations of trial propriety once commenced. The key principle laid down is that where a case calls for further inquiry into an accused person's guilt, the statutory right to bail supersedes general considerations of propriety regarding the commencement of a trial.
- Whether an accused person not named in the FIR whose identification is unverified is entitled to post-arrest bail?
- Does the commencement of a trial automatically bar the grant of bail in a case calling for further inquiry?
- Whether bail should be granted on the rule of consistency when a co-accused in a similar evidentiary position has already been admitted to bail?
- Section 302, Pakistan Penal Code 1860
- Section 460, Pakistan Penal Code 1860
- Section 412, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER
' Through this consolidated order I propose to decide Criminal Miscellaneous No,3377-B of 2003 filed by Azeem and Kashif alias Kashi petitioners and Criminal Miscellaneous No,3439/B of 2003 filed by Muhammad Rameez petitioner seeking post-arrest bail in the same criminal case, i,e, case F.I.R. No,23 registered at Police Station Chunian, District Kasur on 22-1-2003 for offences under sections 302/ 460/412/34, P. P . C.
2. After hearing the learned counsel for the. Parties and going through the record it has been noticed that the occurrence in this case had taken place during the dead of a night and admittedly the petitioners had not been named in the F.I.R. As the perpetrators of the alleged offences. The names of the petitioners had surfaced in this case for the first time through a supplementary statement made by the complainant on 22-1-2003 but even according to that supplementary statement the complainant had been told about the names of the petitioners by one Ali Muhammad. The said Ali Muhammad had made a statement before the police maintaining therein that he had seen the petitioners and their co- accused running away from the spot after the incident. It is not disputed that no test identification parade has been held in this case so as to positively incriminate the petitioners. Even otherwise it is not disputed that the petitioners had not taken any active part in the alleged incident of firing of Liaquat Ali deceased and the petitioners involvement in the alleged dacoity had remained unwitnessed. The articles allegedly recovered from the petitioners' possession during the investigation of this case had never properly been identified by the complainant party to be the articles which had been stolen during the alleged occurrence. A coaceused of the petitioners namely Imran son of Muhammad Umar has already been admitted to bail by the learned trial Court and a petition filed by the complainant seeking cancellation of his bail has already been dismissed by this Court vide order, dated 16-6-2003 passed in Criminal Miscellaneous No,3460/CB of 2003. On the merits of the case there is not much of a difference between the case of the said co-accused and that of the petitioners. The investigation of this case has already been finalized and a challan has already been submitted and, thus, physical custody of the petitioner is no longer required at this stage for the purposes of investigation. In these circumstances the case against the petitioners calls for further inquiry into their guilt within the purview of subsection (2) of section 497, Cr.P.C.
3. It has vehemently been argued by the learned counsel for the complainant that the trial of this case, has already commenced after framing of a charge against the petitioners and their co- accused and thus, this Court may not exercise its discretion in favor of the petitioners by admitting them to bail at such 'a stage. I have, however, remained unable to subscribe to this submission of the learned counsel for the complainant. It has already been observed above that the cast against the petitioner's calls for further inquiry into their guilt. It is trite that in a case calling for further inquiry into the guilt an accused person bail is to be granted to such ah accused person as of right and not by way of grace or concession. Bail is sometimes refused to an accused' persons on account of commencement of his trial but that surely proceeds on a consideration of propriety. It goes without saying that whenever a question of propriety is confronted with a question 'of right the latter. Must prevail.
4. For what has been discussed above both- the above mentioned petitions are allowed and the petitioners are admitted to bail subject to furnishing bail Bonds in the sum of Rs,1,00,000 (Rupees' one hundred thousand only) each with one surety each in the like amount to the satisfaction of the learned trial Court.
5. Before parting with this order it may be clarified that any observation made in the present order shall not prejudice the learned trial Court in any manner.