2010 PLP 2108 (YLR)

SARDAR TARIQ MASOOD, J.

Bhutta and Gaji petitioners seek bail after arrest in case F.I.R. No.35 dated 4-3-2009 registered under sections 302/ 148/149 P.P.C. at Police Station Bangla Achah District Rajanpur.

2. Precisely, the allegations against the petitioners are that they along with others while armed with Kalashnikovs made fire shots at Pheerak, brother of the complainant who succumbed to the said injuries.

3. Learned counsel for the petitioners while reading the F.I.R. specified the role of petitioners that the fire shot of Bhutta petitioner landed on left side of the abdomen of Pheerak deceased whereas the fire shot of Gaji petitioner hit the deceased on front of his abdomen. He also pointed out the role of one of their co-accused namely Khairu whose fire shot hit the deceased on the right side of abdomen. Thereafter, learned counsel for the petitioners contended that Khairu co-accused mentioned above moved bail application before this Court vide Criminal Miscellaneous No.2706-B/2009 and the same was granted by my learned brother Zafar Iqbal Chaudhry, J. on 13-7-2009. Further contended that the role of these petitioners is at par with that of Khairu co-accused who had already been granted bail by this Court. Also contended that the petitioners and Khairu have been declared innocent during the investigation and discharge report regarding them and that of Khairu has already been submitted before the concerned Court and that this Court in this case has already given weight to the opinion of the police.

4. Learned ADPP for the State assisted by the learned counsel for the complainant opposed the grant of bail while arguing that the petitioners are nominated in the F.I.R. with specific role and they are not entitled to the grant of bail.

5. I have gone through the F.I.R. and the record with the able assistance of learned counsel for the parties.

6. In the F.I.R., one fire shot each was attributed to the petitioners hitting on the abdomen of the deceased. Likewise, Khairu co-accused is also attributed solitary shot on the abdomen of the deceased and learned counsel for the complainant could not distinguish the case of the petitioners from the case of co-accused Khairu who had already been granted bail by this Court. My learned brother Zafar Iqbal Chaudhry, J. has already granted bail to Khairu co-accused while observing that "Perusal of the record shows that the petitioner is named in the F.I.R. with specific role for causing injury with the kalashnikov on the belly of the deceased but during investigation conducted by the Investigation Officer he was found innocent keeping in view the enmity already existing between the parties. A discharge report has already been prepared and submitted before the concerned court in this behalf. Although opinion of the police is not binding on the Courts yet it can be considered in a bail petition. Keeping in view the above said circumstances, the case of the petitioner falls within the purview of further inquiry".

7. Rule of consistency is always taken into consideration by the Courts since long. In the case of Muhammad Fazal alias Bodi v. The State (1979 SCMR 9), the Full Bench of the honourable Supreme Court observed that "we think that the petitioner should be released on bail on the principle of requirement of consistency in the same case and for the similar reason that the co-accused to whom a role similar to that of the petitioner was attributed had been so released by another learned Judge of the same High Court". Subsequently thereof in the case of Khadim Hussain v. The State (1983 SCMR 124), the honourable Judges of the Supreme Court held that "after hearing the learned counsel for the parties and going through the material before us, we are inclined to agree with the petitioner's counsel that his case is similar to that of this co-accused released on bail by the Sessions Judge. We, therefore, feel that the petitioner is also entitled to bail." In the case of Manzoor Ahmad and others v. State (PLJ 1999 Cr.C. (Lahore) 570), the learned Division Bench of this Court observed that "co-accused of the petitioners namely Muhammad Sarwar who was also present with the petitioners at the time of alleged offence has already been granted bail by the learned trial Court vide order dated 11-11-1998. Prima facie, case of the petitioners seems to be at par with that of Muhammad Sarwar co-accused. Thus, keeping in view the principle of consistency, petitioners are entitled to the concession of bail". In the case of Muhammad Daud and another v. The State and another (2008 SCMR 173), it is held by the honourable Supreme Court that "Co-accused in the case had already been admitted to bail

Accused were also allowed bail in view of the rule of consistency in the circumstances."

8. While going through the above judgments, it is crystal clear that the Court always consider the ground of rule of consistency because a person cannot be denied for the grant of bail whose case is at par with an accused who had already been granted bail. As the Courts have to give equal treatment to the accused person having one and the same role in the same case. As the case of the petitioners is at par with that of Khairu co-accused who had already been allowed bail by this Court, therefore, in view of the order in Criminal Miscellaneous No. 2706-B of 2009 and following the rule of consistency, the petitioners are also admitted to bail subject to their furnishing bail bonds in the sum of Rs.5,00,000 (Rs. Five lacs only) each with two sureties each in the like amount to the satisfaction of learned trial. N.H.Q./B-50/L Bail granted.