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| Rule of consistency in 302 bail dismissed . |
! یہاں ایک زیادہ جامع خلاصہ ہے:
عدالت نے محمد عاطف کی ضمانت مسترد کرنے کے لاہور ہائی کورٹ کے فیصلے کو برقرار رکھتے ہوئے کہا کہ فیصلے میں کوئی قانونی خامی نہیں پائی گئی۔ اس نے پاکستان کے آئین کے آرٹیکل 25 کے تحت مساوی سلوک کی اہمیت کا اعادہ کیا اور اس بات پر زور دیا کہ ضمانت کے فیصلوں میں تمام تفتیشی شواہد پر غور کرنا چاہیے، نہ کہ صرف ایف آئی آر۔ عدالت نے عاطف اور شریک ملزم فاروق اور خالد کے درمیان شواہد اور ملوث ہونے میں فرق کو اجاگر کیا۔ اس نے واضح کیا کہ ضمانت کے فیصلے جرم کی نشاندہی نہیں کرتے اور مقدمے کے حتمی فیصلہ میں ٹرائل کورٹ کے اختیار کی تصدیق کرتے ہیں۔
SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Bench - III:
Mr. Justice Syed Mansoor Ali Shah
Mr. Justice Sayyed Mazahar Ali Akbar Naqvi
Mr. Justice Syed Hasan Azhar Rizvi
Crl.P.298/2023
(Against the order of Lahore High Court, Lahore,
dated 16.03.2023, passed in Crl. Misc. No.3167-B of 2023)
Muhammad Atif
... Petitioner
Versus
The State and another
… Respondents
For the petitioner:
Barrister Usman G. Rashid Cheema, ASC.
For the State:
Ch. Muhammad Sarwar Sidhu, APG, Punjab,
a/w Mr. Asghar Ali, Investigating Officer.
For the complainant:
Mr. Mudassar Khalid Abbasi, ASC.
Date of Hearing:
31 October 2023.
ORDER
Syed Mansoor Ali Shah, J.- The petitioner seeks leave to appeal
against an order of the Lahore High Court, dated 16.03.2023, whereby the
post-arrest bail has been declined to him in case FIR No. 209/2021
registered at Police Station, Jinnah Road, District Gujranwala, for the
offences punishable under Sections 302, 148 and 149 of the Pakistan Penal
Code (“PPC”).
2.
Briefly, as per the crime report (FIR), the allegation against the
petitioner is that on 3 April 2021 at about 09:00 a.m., he and other accused
persons, namely, Umar Farooq, Zain, Goga, Farooq, Khalid and one
unknown person, committed the murder of Zain Ahmad, aged 20/21 years,
and Qais Ahmad, aged 15/16 years, the sons of the complainant. In the
investigation, the accused Farooq and Khalid were found not present on the
spot at the time of occurrence. On this ground, they have been admitted to
post-arrest bail by the courts below.
3.
The learned counsel for the petitioner has argued that the role
attributed to the present petitioner in the FIR is similar to that of the
accused, Khalid and Farooq, who have been granted post-arrest bail;
therefore, the petitioner is also entitled to the concession of bail on the basis
of rule of consistency. On the other hand, the learned counsel for the State
and the complainant have submitted that the rule of consistency does not
apply to the petitioner as his case is distinguishable from that of those
Crl. P. 298 of 2023
2
accused persons. Both sides have also relied upon several cases in support
of their respective contentions.
4.
We have considered the arguments of the learned counsel for the
parties, read the cases cited by them and examined the record of the case.
5.
From the respective contentions of the parties, the question of law that
has arisen for our consideration is: what is the benchmark for applying the
rule of consistency in granting bail to an accused? In other words, what is
that has to be compared between the case of the accused and the co-accused
in order to determine consistency for the purpose of determining the
applicability of the rule of consistency in granting bail under Section 497(2)
of the Code of Criminal Procedure (“CrPC”); whether it is merely the role
attributed to the accused and the co-accused in the FIR? or whether the role
has to be assessed by compositely considering the FIR and the material
collected during investigation by the Police?
6.
The rule of consistency applied in bail matters is premised on the
fundamental right to equality before the law guaranteed under Article 25 of
the Constitution of Pakistan1 This right to equality before the law ensures
that persons similarly placed in similar circumstances are to be treated in
the same manner. In other words, among equals the law should be equally
administered; the like should be treated alike.2 Article 25 of the
Constitution does not prohibit different treatment to persons who are not
similarly placed or who are not in similar circumstances. To claim equality
before the law an accused person must therefore show that he and his coaccused who has been granted bail are similarly placed in similar
circumstances. In other words, he must show that the prosecution case, as a
whole, against him is at par with that against his co-accused who has been
granted bail, and not distinguishable in any substantial aspect. The rule of
consistency is also pillared on Articles 4 and 10A of the Constitution
ensuring that level playing field and fairness is maintained in adjudicating
cases of co-accused. The right to liberty under Article 9 of the Constitution
has to be extended fairly and without discrimination to an applicant seeking
bail. The rule of consistency in bail matters is fundamental to ensuring
fairness, reducing arbitrary decision-making, and maintaining public
confidence in the criminal justice system. It's a key aspect of the rule of law,
ensuring that all individuals are treated equally under the law.
7. 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
1
Fida Hussain v. State PLD 2002 SC 46.
2
Abdul Jalil v. N.W.F.P. Forest Development Corporation 2010 SCMR 1933; Tariq Nawaz v. Govt. of Pakistan
2001 PLC (C.S.) 57
l. P. 298 of 2023
3
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.
8.
The offence of Qatl-i-Amd (intentional murder) involved 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), CrPC. In the
offences that fall within the prohibitory clause of Section 497(1), CrPC, the
post-arrest bail is granted on three grounds: (i) under the first proviso to
Section 497(1), CrPC, 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), CrPC, 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),
CrPC, on the ground that there are no reasonable grounds for believing that
the accused has committed the offence, but rather there are sufficient
grounds for further inquiry into his guilt.3 The accused, Farooq and Khalid,
have been granted bail on the third ground, i.e., under Section 497(2), CrPC.
9.
For the determination of the question under Section 497(2), CrPC, as
to whether or not there exist any "reasonable grounds" for believing that the
accused has committed the alleged offence, the courts have to appraise
although tentatively the whole material available on the record of the case.4
This question cannot be determined by merely examining the contents of the
FIR. Essentially, it is the tentative assessment of the evidence collected in
the investigation both for and against the accused that is determinative of
the said question.5 Likewise, to decide upon the applicability of the rule of
consistency for granting bail under Section 497(2), CrPC, the courts have to
examine the whole material available on the record of the case.6 Without
doing so, it cannot be determined whether the accused who claims the
benefit of this rule and his co-accused who has been granted bail are
similarly placed in similar circumstances. We have, therefore, no doubt in
our minds in holding that the benchmark for applying the rule of
consistency is not only the role attributed to the accused in the FIR but also
the material collected in the investigation. The petitioner’s stance to only
3 Raza Bukhari v. State PLD 2022 SC 743.
4 Manzoor v. State PLD 1972 SC 81; Khalid Gillani v. State PLD 1978 SC 256.
5
Khalid Gillani v. State PLD 1978 SC 256.
6
See Shahid Farooq v. State 2011 SCMR 1619, wherein the case of the petitioner was distinguished on the basis
of evidence (statement of the injured witness) collected against him in the investigation.
Crl. P. 298 of 2023
4
look at the role attributed to him in the FIR and to those of his co-accused,
Farooq and Khalid, who have been granted bail under Section 497(2), CrPC
for determining the applicability of the rule of consistency is not legally
tenable.
10.
The cases referred to by the learned counsel for the petitioner have
distinguished facts and circumstances. In Fazal,7 the bail to the co-accused
had been granted on the ground of delay in the conclusion of the trial, which
ground was also available to the petitioner; hence, he was granted bail by
this Court on the same ground on the rule of consistency. In Abdus Sattar,8
the co-accused had been granted bail because the role attributed to him
attracted the offence of causing grievous hurt punishable under the
erstwhile Section 325, PPC, which offence did not fall within the prohibitory
clause of Section 497(1), CrPC, and the petitioner who was granted bail by
this Court had also been alleged to have committed the said offence. The
offence of murder punishable under the erstwhile Section 302, PPC, was not
attributed to either of them. Similar were the facts in Abid.9
11.
In the present case, the courts below have granted the post-arrest bail
to the accused, Farooq and Khalid, under Section 497(2), CrPC after making
a tentative assessment of the evidence collected in the investigation both for
and against them. The tentative assessment of that evidence has led them to
the finding that there are no reasonable grounds for believing that the said
accused have committed the offence of murder of the complainant’s son, but
rather there are sufficient grounds for further inquiry into their guilt. The
material collected in the investigation in the case of Farooq and Khalid
shows that they were not present on the scene of the crime. This is not so in
the case of the petitioner. Therefore, material collected in the investigation
against the present petitioner is different from that collected against them.
The ground on which they have been granted bail is not available to the
petitioner. The case against the petitioner is therefore not at par with that
against those accused persons but rather is distinguishable in a substantial
aspect. The allegation made against the petitioner of being present on the
spot and having made fires on the deceased sons of the complainant by his
firearm is not only supported by the statements of the eye-witnesses but also
corroborated by the recovery of the weapon of offence effected from him in
the investigation. There is, as such, sufficient incriminating material
available on the record of the case to connect the petitioner with the
commission of the alleged offence, and his case does not come within the
7 Muhammad Fazal v. State 1979 SCMR 9.
8 Abdus Sattar v. State 1982 SCMR 909.
9 Abid v. Sate 2016 SCMR 907.
Crl. P. 298 of 2023
5
scope of the provisions of Section 497(2), CrPC, nor does the rule of
consistency apply to him.
12.
For the above reasons, we find no legal fault in the order of the High
Court declining post-arrest bail to the petitioner. The petition is found
meritless. It is, therefore, dismissed and the leave to appeal is declined.
However, it is clarified that the observations and findings made in this order,
as well as in the orders of the courts below in the bail declining orders
passed on the applications of the petitioner, or in the bail granting orders
passed on the applications of the accused, Farooq and Khalid, are tentative,
which shall have no effect upon the final determination of the case by the
trial court on conclusion of the trial.
Islamabad,
31 October 2023.
Approved for reporting
Iqbal
Judge
Judge
Judge
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