P L D 1995 Karachi 347 (PLP)

(c) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑S. 497‑‑‑Bail‑‑‑Rule of consistency‑‑‑Grant of bail to an accused who should not have been allowed to bail, does not justify release of another accused in the same case on bail who was otherwise not entitled to the same. [p. 349] C Muhammad Azim v: The State PLD 1988 SC 84 ref. Zaheer Ahmed Khan for Applicants. . K.M. Nadeem, AA.‑G. for the State. ORDER` This bail application has been moved on behalf of the present applicants who are involved in the case registered as Crime No.29 of 1994 at Police Station Malir City under section 435/427/109, P.P.C. Allegations as contained in the F.I.R. are that on the date of the incident the complainant was on patrol duty in the police mobile and when he reached Khyber Coach Stand at 03‑55 hours he saw that five persons whose names and addresses were not known had put a Coach on fire using petrol. The fire was extinguished with the help of the driver Zafarullah. The said persons attempted to run away and were chased by the police party and in such chase the present applicant No.2 was apprehended on the spot who disclosed his name as Irshad Ali and also informed that his other companion had run away. This incident had taken place in the funeral ceremony of deceased Tanveer Hussain a leader of ethnic party. It is also in the F.I.R. that the present applicant No.l alongwith 8 other leaders of the party had caused provocation and raised provocative slogans which infuriated the mob. However, the case, after arrest of the accused, was sent up. Bail application was moved on, behalf of the present applicants which was rejected. Hence this bail application. We have heard Mr. Zaheer Ahmed Khan, the learned counsel for the applicants. He has submitted that the offence under section 435, P.P.C. is the only scheduled offence as given in the F.I.R. and is punishable only by seven years which does not fall under the prohibitory clause and therefore, the applicant would be entitled to grant of bail. The learned counsel has also pointed out that some of the co‑accused, who are sitting legislators, have already been granted bail and therefore the rule of consistency requires that present applicants should also be granted bail. Mr. K.M. Nadeem appearing for the State has vehemently opposed the bail application. We have considered the submission of the learned counsel. At the very I outset we may observe that offence under section 435, P.P.C. punishable with a maximum sentence of seven years only, is a non‑bailable offence and thus maximum sentence being less than 10 years would not ipso facto entitle a person to grant of bail as a matter of right in a non‑bailable case. The applicant has to show if a case for grant of bail exists in his favour. Under the provisions of Suppression of Terrorist Activities (Special Courts) Act, the burden is on the accused to show that he is not guilty of alleged offence if he is arrested in such circumstances. In the present case applicant No.2 is arrested or the spot while putting to torch the public property. In such case ' the culprit can hardly be entitled to any sympathetic consideration. As regards the rule of consistency, the learned AA.‑G. has placed reliance on the case of Muhammad Azim v. The State (PLD 1988 SC 84) wherein their Lordships have observed that "mere fact that a person who should not have been allowed bail, was allowed bail in the same case does not justify grant of bail to a person who is otherwise not entitled to it". As observed above one of the applicants had been arrested on the spot and, thus he would not have been entitled to grant of bail. The third ground raised by the learned. counsel is that in spite of lapse of considerable time the trial Court is not proceeding with the present case. In these circumstances we would direct the trial Court to frame the charge and examine at best two of the eye‑witnesses within a period of six weeks from the date of this order. the applicants would be at liberty to move a fresh bail E application after such evidence is recorded if the grounds for grant of bail arise. With these observations this bail is dismissed. N.H.Q./K‑380/K Bail refused.