PLJ 2025 SC (Cr.C.) 16
[Appellate Jurisdiction]
Present: Jamal Khan Mandokhail, Syed Hasan Azhar Rizvi
and
Ms. Musarrat Hilali, JJ.
NAEEM SAJID
and others--Petitioners
versus
STATE through Prosecutor General Punjab and another--Respondents
Crl. P. No. 46 of 2024, decided on 17.5.2024.
(Against the judgment dated 19.12.2023 of the Lahore High
Court, Lahore passed in Crl. Misc. No. 74603-B/2023)
Criminal Procedure Code, 1898 (V
of 1898)--
----S. 497--Pakistan Penal Code,
(XLV of 1860), Ss. 302, 148 & 149--Post-arrest bail, grant of--Falsely
implicated--It is a fact that issue between parties is in respect of land where
incident had occurred--The claim of complainant is that petitioners and others
attacked upon father of complainant with sticks who was injured and
subsequently he was thrown in front of tractor and tractor ran over their
father, which resulted into his death--On other hand, petitioners denied claim
of complainant and have narrated a different story--According to them
complainant was aggressor who attacked upon them--Role of each of accused has
to be established subsequently, in light of medical report showing cause of
death--The facts and circumstances lead the Court to a conclusion that case of
prosecution requires to be proved through a cogent and reliable evidence, which
is yet to be produced before Trial Court--At this stage, on a tentative
assessment, prima facie, petitioners cannot be singled out for commission of
offence--Their involvement in case is on of a further inquiry, on basis of
which, petitioners are entitled for grant of bail. [P. 18] A
As Per Syed
Hassan Azhar Rizvi, J.--
Criminal Procedure Code, 1898 (V
of 1898)--
----S.
497--Pakistan Penal Code, (XLV of 1860), Ss. 302, 148 & 149--Post-arrest
bail, refused--Dismissal of--All petitioners are expressly nominated in FIR
with specific roles attributed to them--They collectively caused injuries to
deceased Attique-ur-Rehman and threw him in front of tractor--The petitioners
have not disputed time, date, and place of occurrence or their presence at time
of occurrence has been denied--The majority judgment granted bail on ground of
cross-version--However, that cross-version was registered after delay of one month
and 03 days--Firstly, Petitioners filed first post-arrest bail before trial
Court on 27.05.2023 and they never mentioned about alleged occurrence as
mentioned in cross-version--The offence of Qatl-i-Amd alleged in present case,
being punishable with death or imprisonment for life under Section 302, PPC,
falls within prohibitory clause of Section 497(1), Cr.P.C--In offences that
fall within prohibitory clause of Section 497(1), Cr.P.C., post-arrest bail is
granted on three grounds: (i) under first proviso to Section 497(1), Cr.P.C.,
on ground of accused being a minor, or a woman, or a sick or infirm person;
(ii) under third proviso to Section 497(1), Cr.P.C., on ground of delay in
conclusion of trial beyond period prescribed for no fault of accused; and (iii)
under Section 497(2), Cr.P.C., on ground of further inquiry into guilt of
accused--The present case, by tentative assessment, does not seem to be one of
further inquiry--Supreme Court has refused to grant bail in similar
circumstances. [Pp. 19, 20 &
21] B, D & E
2023 SCMR 1068; 2023 SCMR 1068 & 2024 SCMR 1071.
Rule of Consistency--
----It is trite law that rule of
consistency is applicable only when one person’s case is at par with rest of
accused whose post-arrest bail has been granted--This is not case at hand and
petitioners have played an active role in causing death of deceased. [P.
20] C
2024 SCMR 1071.
Mr. Mazhar Iqbal Sidhu, ASC and Syed Rifaqat Hussain
Shah, AOR for Petitioners.
Mirza Abid Majeed, DPG for State.
Mr. Akhtar Hussain Bhatti, ASC for Complainant.
Date of hearing: 17.5.2024.
Order
Jamal Khan Mandokhail, J.--The petitioners were arrested
in pursuant to FIR No. 663/2023 dated 25.05.2023 registered under Sections 302,
148 & 149, PPC at Police Station Hujra Shah Muqeem, District Okara. The
petitioners filed an application for grant of bail before the Trial Court,
which was dismissed. Feeling aggrieved, they approached the Lahore High Court,
Lahore (‘the High Court’), but their application was dismissed by means
of the impugned judgment, hence this petition.
2. The learned
counsel for the petitioners states that the petitioners are owners of the
property, where the incident occurred. They were busy in ploughing their land
through tractors, but all of sudden, the complainant and his companions came at
the place of occurrence and started interference. The learned counsel submits
that the complainant party attacked upon the accused and others and blazed
three tractors of the petitioners’ party. It is stated that in respect of the
said incident, a cross FIR was also registered by the petitioners. The learned
counsel adds that there is a civil dispute between the parties, on the basis
whereof, the petitioners have falsely been implicated in the case.
3. The learned
Deputy Prosecutor General and the learned counsel for the complainant opposed
the contentions and stated that the petitioners are nominated in the FIR and
are responsible for the commission of the act of committing murder.
4. Arguments heard and have perused the
record. It is a fact that issue between the parties is in respect of the land
where the incident had occurred. The claim of the complainant is that the
petitioners and others attacked upon the father of the complainant with sticks
who was injured and subsequently he was thrown in front of the tractor and the
tractor ran over their father, which resulted into his death. On the other
hand, the petitioners denied the claim of the complainant and have narrated a
different story. According to them. the
complainant was the aggressor who attacked upon them. Role of each of the
accused has to be established subsequently, in the light of medical report
showing cause of death. The facts and circumstances lead us to a conclusion
that the case of the prosecution requires to be proved through a cogent and reliable evidence, which is yet to be produced
before the Trial Court. At this stage, on a tentative assessment, prima facie,
the petitioners cannot be singled out for commission of the offence. Their
involvement in the case is one of a further inquiry, on the basis of which, the
petitioners are entitled for the grant of bail. These are the reasons of our
short order of even date, which is as follows:
‘For the reasons to be
recorded later, by majority of 2 to I (Syed Hasan Azhar Riziu, J, dissenting),
this petition is converted into an appeal and is allowed. The petitioners are
granted post-arrest bail subject to their furnishing surety bonds in the sum of
Rs. 2,00,000/ -each and PR in the like amount each to
the satisfaction of the Trial Court. The Trial Court should proceed with the
matter expeditiously and to decide the matter preferably within the period as
directed by the High Court.’
Judgment
Syed Hasan Azhar Rizvi, J.--I
have had the privilege of going through the order (“majority decision”)
authored by my learned Colleague Mr. Jamal Khan Mandokhail, J. With great
respect, I do not find myself in agreement to it for the facts and reasons
mentioned herein.
2. Through the present petition, the
petitioners are seeking post-arrest bail in case FIR No. 663/2023 dated
25.05.2023 registered under Section 302, 148 & 149 PPC at Police Station
Hujra Shah Muqeem, District Okara.
3. Allegations leveled against the
petitioners are that on 25.0 .2024 at about 05:45 P.M came armed at the fields
of the deceased with three tractors. They thrashed the deceased (complainant’s
father) with clubs and threw him in front of the tractor thus caused his death.
4. Perusal of the record indicates that all
the petitioners are expressly nominated in the FIR with specific roles
attributed to them. They collectively caused injuries to the deceased
Attique-ur-Rehman and threw him in front of the tractor. The petitioners have
not disputed the time, date, and place of occurrence or their presence at the
time of occurrence has been denied.
5. This Court in the case of Bakhti
Rahman,
ruled as under:
“At the bail stage,
the Court has to tentatively form an opinion by assessing the evidence
available on record without going into merit of the case. The deeper
appreciation of the evidence cannot be gone into and it is only to be seen
whether the accused is prima facie connected with the commission of
offence or not. In order to ascertain whether reasonable grounds exist or not
the Courts not only have to look at the material placed before them by the
prosecution, but see whether some tangible evidence is available against the
accused or not to infer guilt.”
6. As far as
contention of the learned counsel regarding rule of consistency is concerned,
it is trite law that the rule of consistency is applicable only when one
person’s case is at par with the rest of the accused whose post-arrest bail has
been granted. This is not the case at hand and petitioners have played an
active role in causing the death of the deceased.
7. The rule of consistency
was explained by this Court in the case of Muhammad Atif,
in the following words:
“The rule of
consistency in bail matters is attracted and applied after the grant of bail to
a co-accused. Grant of bail by a Court considers several factors like the
contents of the FIR, the incriminating material collected by the police during
investigation, the past history of the accused, etc. The grounds which form the
basis for the grant of bail to a co-accused is thus
the benchmark for grant of bail to the accused under the rule of consistency.
Therefore, the Court has to assess whether the role of the accused in the FIR,
examined in the background of the material collected by the Police is the same
as that of the co-accused, who has been granted bail. It is this congruence in
the case of the co-accused and the accused that attracts the rule of
consistency.”
Therefore, in view of the above
judgment, the rule of consistency is not attracted in the case at hand.
8. The MLC available
on record fully supports the prosecution case. There is no contradiction
between the medical report and the version put forth by the complainant.
9. The majority
judgment granted bail on the ground of cross-version. However, that
cross-version was registered after the delay of one month and 03 days. Firstly,
Petitioners filed the first post-arrest bail before the trial Court on
27.05.2023 and they never mentioned about the alleged occurrence as mentioned
in cross-version.
10. The offence of
Qatl-i-Amd alleged in the present case, being punishable with death or
imprisonment for life under Section 302, PPC, falls within the prohibitory
clause of Section 497(1), Cr.P.C.
In the offences that fall within the prohibitory clause of Section
497(1), Cr.P.C., the post-arrest bail is granted on three grounds: (i) under
the first proviso to Section 497(1), Cr.P.C., on the ground of the accused
being a minor, or a woman, or a sick or infirm person; (ii) under the third
proviso to Section 497(1), Cr.P.C., on the ground of delay in the conclusion of
the trial beyond the period prescribed for no fault of the accused; and (iii)
under Section 497(2), Cr.P.C., on the ground of further inquiry into the guilt
of the accused. The present case, by tentative assessment, does not seem to be
one of the further inquiry. This Court has refused to
grant the bail in similar circumstances as in the case Bakhti Rehman v.
State (2023 SCMR 1068) and Muhammad Atif v. State 12024 SCMR 1071).
10-A. In view of above
facts and circumstances, petitioners have failed to make out a case for the
grant of bail. Impugned judgment of the High Court is well-reasoned, has
considered all the factual and legal aspects, thus, needs
no interference.
10-B. Consequently,
this petition is hereby dismissed and leave refused.
(A.A.K.) Petition dismissed