MAZHAR alias MAZAR BABAR and others vs THE STATE
This matter concerns a post-arrest bail application filed by applicants accused of an offense punishable under Section 460 of the Pakistan Penal Code 1860. The core legal question was whether the applicants were entitled to the concession of bail based on the rule of consistency, given that a co-accused facing identical allegations had already been granted bail by the Court. The Court observed that the applicants were not nominated in the First Information Report, the identification parade was conducted after an unexplained delay of eight days, and the parade was joint with insufficient dummies. The Court held that these procedural drawbacks in the identification process established a case for further inquiry. Furthermore, acknowledging that the State Counsel conceded the application due to the rule of consistency, the Court granted bail. The key principle laid down is that where the circumstances of the case are identical, the concession of bail granted to a co-accused cannot be withheld from other similarly placed accused persons, as consistency in judicial treatment is a fundamental requirement of justice.
- Does the rule of consistency entitle an accused to bail if a co-accused facing identical allegations has already been granted the same concession?
- Can procedural flaws in an identification parade, such as unexplained delay and joint testing, constitute grounds for further inquiry in a bail application?
- Is bail appropriate when the accused were not nominated in the First Information Report and the identification process is legally questionable?
- Section 460, Pakistan Penal Code 1860
ORDER
1. ' Applicants are being tried for an offence punishable under section 460, P.P.C.
2. ' As per allegations in the F.I.R. On 20-12-2003, at about 1-30 a.m. Complainant Ahmed Ali woke up and found three persons standing in the courtyard of his house, out of whom one was untying his cow. One culprit was armed with Klashnikov, one with rifle and the third with gun. On flashing the torch he could see their faces therefore, he stated in the F.I.R. That he would be able to identify them if seen again. He raised cries which attracted his brother Kouro. He attempted to grapple with one of the culprits, but the culprits opened indiscriminate fires and managed to escape. In the meantime complainant's son Sajjad raised cries that a bullet has hit him. He was removed to Taluka Hospital, K.N. Shah, but he expired on the way.
3. ' I have heard Mr. Abdul Rasool Abbassi, learned counsel for applicants and Mr. Mushtaque Ahmed Kourejo, learned State Counsel, the latter has conceded to grant of bail in view of the rule of consistency.
4. ' Learned counsel for applicants contended that the applicants are not nominated in the F.I.R.; they were unknown to the complainant party and their features were not described in the F.I.R. After arrest of the applicants the identification test was held after unexplained delay of eight days; the test was joint; only 9 dummies were mixed with four accused persons; and inter alia on these grounds the co-accused has been granted bail, the applicants are as such entitled to same concession, following the rule of consistency. Learned State counsel in these circumstances submitted that the case of applicants is identical, therefore, he would not oppose the bail.
5. ' The contentions raised by learned counsel for applicants were fully considered in the case of co- accused Nisar, and bail was granted by this Court on 11-5-2004, considering the above facts and drawbacks in identification test etc. Reliance was also placed on Badlo v. State 2004 PCr.LJ 157, Mehmood Ahmad v. State 1995 SCM R 127, Mehar alias Fazal Muhammad v. State 1978 PCr.LJ 176, and Ghulam Nabi v. State 2002 PCr.LJ 349, while admitting the bail plea. Additionally, the said applicant had established previous enmity which was also taken into consideration.
6. No doubt specific plea of enmity has not been taken in this case, but all other grounds are common. Learned State Counsel rightly conceded to grant of bail, since the concession allowed to a person similarly placed cannot be withheld to the remaining accused. This incident had taken place during darkness of night and the culprits were seen on single flash of torch while the incident ended within few moments. The drawbacks in the identification test therefore, make out a ground for ,further inquiry. Accordingly, following the rule of consistency, the application is allowed.
7. ' Applicants should be released on furnishing solvent surety each in the sum of Rs.300,000 (three - hundred thousand) and P.R. Bond in the like amount, to the satisfaction of trial Court.