2021 P Cr (PLP)

CHAUDHARY KHALID YOUSAF, J.

This revision petition has been directed against the order of Additional District Court of Criminal Jurisdiction Kotli dated 07.05.2020, whereby the post-arrest bail declined to the accused-petitioner. The brief facts lending to the revision petition are that on complaint of Aamir Khalil, complainant, a case under sections 34, 337, 302 and 452, A.P.C. has been registered against the accused-petitioner and co-accused at Police Station Khuiratta on 08.12.2019, alleging therein that complainant and Zeeshan, running their business of Tailoring at Thathi Bazar. It has been alleged that Zeeshan Shabbir and accused Adeeb Tariq have some personal dispute. On 08.12.2019, at 02:45 p.m., the complainant along with Zeeshan Shabbir were working inside the shop, meanwhile the accused-persons having common intention entered in the shop, present petitioner and co-accused Abdul Rehman gave fists blow and pushed Zeeshan Shabbir, whereas, accused Adeeb opened straight fire with intention to kill, which hit on left arm's bicep and injured Zeeshan Shabbir was brought in THQ Hospital Khuiratta but he succumbed to injuries in the Hospital. The occurrence was witnessed by Arslan Mehboob, Naseem and other people beside the complainant. After registration of the case, accused-petitioner and co-accused were apprehended by police. Thereafter, accused-petitioner moved post-arrest bail application before Additional District Court of Criminal Jurisdiction Kotli on 04.05.2020. The learned Court below dismissed the same vide its order dated 07.05.2020; hence, this revision petition. Chaudhary Muhammad Illyas, Advocate, learned Counsel for accused-petitioner vehemently argued that the role alleged to the accused-petitioner is same as to the co-accused Abdul Rehman who was released on bail; therefore, as per rule of consistency accused-petitioner is also entitled for same concession. Learned Counsel pointed out that investigation in this case has been completed and challan of the case has also been submitted, accused-petitioner is no more required by the police for investigating purpose. He further contended that accused-petitioner is student of 9th Class whose studies will suffer if he kept in jail for indefinite period. Learned counsel further contended that contents of FIR have not been supported by the statements recorded under section 161, Cr.P.C. Therefore, the case of the accused-petitioner falls within the ambit of further inquiry hence; he is entitled for bail on this ground too. On the other hand, Abdul Aziz Khan, Advocate, learned Counsel for the complainant-respondent, controverted the arguments advanced by learned Counsel for the accused-petitioner and strenuously contended that accused-petitioner and co-accused having common intention, committed heinous crime of murder. So, they are equally liable to the commission of non-bailable offence. Learned counsel further contended that accused- petitioner and co-accused, trespassed the house therefore; section 452, A.P.C. is fully attracted. He further submitted that a criminal act is done with common intention so all the accused liable for the act done by the principal accused. He submitted that the accused-petitioner is involved in a commission of non-bailable offence punishable with death; therefore, he is not entitled for concession of bail. He placed his reliance on the following case law;-

1. PLD 1991 SC 172 2. 2008 PCr.LJ 351 [Shariat Court (AJ&K)] 3. 1996 SCR 247

4. PLD 1986 SH.C (AJ&K) 74 Sajid Haneef Qureeshi, learned Assistant Advocate General appearing on behalf of the State fully. owned and supported the arguments advanced by the learned Counsel for the complainant and contended that accused-petitioner and co-accused having common intention, killed an innocent person, therefore, section 34, A.P.C. is fully attracted, hence, accused-petitioner is not entitled for any concession of bail. I have heard the learned counsel for the parties as well as State Counsel and gone through the record of the case with utmost care. The main contention of the learned counsel for accused-petitioner is that the co-accused having identical role was released on bail therefore, accused-petitioner is liable to the same treatment. In criminal cases rule of consistency applies when the accused has identical role with the co-accused then he is entitled for the same relief which was granted to the co-accused. In the case in hand, co-accused of the present petitioner Abdul Rehman having similar role was released on bail by this Court vide order dated 24.03.2020. Relevant portion of the First Information Report is reproduced herein blow. As the case of the accused-petitioner is at par with the co-accused, Abdul Rehman released on bail therefore, he is also entitled for same treatment as per rule of consistency. Reliance can be placed on case titled "Muhammad Ajmal v. Muhammad. Naeem and 3 others" (2001 PCr.LJ 1073), the relevant portion is usefully reproduced as under;- "Therefore, the case of the appellants Muhammad Siddique and Maqbool Hussain is at par with the case of Muhammad Waheed and Mehmood Hussain. Thus, following the rule of consistency, the appellants Muhammad Siddique and Maqbool Hussain should not have been meted with a discriminatory treatment. Thus, they are also entitled to the concession of bail." Another case reported as "Akhtar Hussain and another v. The State and another" [2010 SCR 455], wherein it has been observed as under;- "The case of Faisal Iqbal is at par with the case of Ansar Iqbal and Tariq Mahmood. No overt act is attributed to all the three accused towards the deceased and if the other two accused are released on bail, why the concession of bail may not be extended to the accused, Faisal. Iqbal, who is facing similar allegations." Furthermore, tentative assessment of record reveals that no injury is attributed to accused-petitioner, investigation has completed, challan has also been submitted before the Court of competent jurisdiction accused-petitioner is no more required for any investigation purpose. There is no legal compulsion to keep the person in jail merely on the ground that he is nominated in the mere presence of accused at the place of occurrence with co-accused, who commits offence may not be sufficient to connect him with the vicarious liability, there should be some strong circumstances manifesting a common intention. After tentative assessment of FIR, statements recorded under section 161, Cr.P.C. and other material collected by the investigating agency I am of the opinion that apparently no reasonable grounds exist to believe that accused-petitioner is guilty of offences levelled against him. In view of the above discussion instant criminal revision petition is allowed petitioner is admitted to bail under sections 34, 302, 337, 452, A.P.C., 15(2), Arms Act and 31, Telegraphic Act, subject to furnishing bail bonds in the sum of Rs.10,000,00/- (one million) consisting of two sureties and personal bond to the like amount to the satisfaction of any Judicial Magistrate at Kotli, provided not required in any other offence. Before parting it is important to note here that the observations made hereinabove are tentative in nature shall not affect the case of either party during trial. SA/35/HC(AJ&K) Bail granted.