2025 Y L R 339
[Balochistan]
Before Rozi Khan Barrech, J
SYED MUHAMMAD--- Applicant
Versus
The STATE--- Respondent
Criminal Bail Application No. 524 of 2024, decided on 14th October, 2024.
(a) Criminal Procedure Code (V of 1898) ---
----Ss. 497 & 498--- Bail---Scope ---At bail stage, deeper appreciation of material
available on record is unwarranted, and the court has to form its opinion tentatively on
the basis of the available record.
(b) Criminal Procedure Code (V of 1898) ---
----S. 497(2) ---Penal Code (XLV of 1860), Ss. 302(b) & 34 ---Qatl-i-amd, common
intention ---Bail, grant of ---Further inquiry ---Rule of consistency---Accused were charged
for committing murder of the nephew of complainant by firing--- As per record, three
accused were charged for the occurrence with the allegation that the accused/ applicant along with acquitted accused and co -accused (on bail) made firing upon the deceased and
effective role was attributed to all the accused persons ---Record revealed that after facing
trial the co -accused was acquitted from the charge by the Trial Court on 30.03.2024 and
subsequently the co- accused was arrested and was enlarged on bail by the trial Court on
29.06.2024 ---All the accused were ascribed similar role ---Rule of consistency, or in other
words, the doctrine of parity in criminal cases, including bail matters, recapitulated that where the incriminating and ascribed role to the accused was one and the same as that of the co -accused then the benefit extended to one accused should be extended to the co-
accused also on the principle that like cases should be treated alike, but after accurate evaluation and assessment of the co -offenders' role in the commission of the alleged
offence ---In the case in hand all the accused persons nominated in the FIR were attributed
the same role that they made firing upon the deceased who received injuries, however, one of the accused persons was acquitted from the charge after being given benefit of doubt by the trial Court and the other accused had been granted bail by the Trial Court ---
After tentative assessment, the applicant had not only made out a case of further inquiry but he was also entitled to be enlarged on bail in view of the rule of consistency---Prosecution alleged that the accused/applicant remained absconder after the incident as such he was not entitled to bail, however an applicant could be granted bail if the applicant otherwise made out the case on merits and mere absconsion would not come in his way ---Custody of the applicant would not advance the case of the prosecution in any
manner ---Bail petition was allowed, in circumstances.
Mitho Pitafi v. The State 2009 SCMR 299 rel.
(c) Criminal Procedure Code (V of 1898) ---
----S. 497 ---Bail order ---Observations of Court ---Scope ---Observations made in a bail
order are just tentative in nature and are strictly confined to the disposal of bail application.
Sarwar Khan Mandokhail for Applicant.
Abdul Mateen, DPG, for the State.
Date of hearing: 10th October, 2024.
ORDER
ROZI KHAN BARRECH, J .---Through this application, the applicant/ accused
Sayed Muhammad, son of Tasleem, seeks posts arrest bail in FIR No. 19/2022 lodged with
Levis Thana Sinjavi, District Ziarat dated 06.12.2022 under sections 302 and 34 P.P.C. on the complaint of Noor ud Din, son of Hassan Khan which was declined to him by learned Additional Sessions Judge, Sinjavi ('trial court') vide order dated 05.10.2024.
2. The prosecution story disclosed in the First Information Report (FIR) in brief is that
on 06.12.2022 at 7:30 pm his nephew namely Azizullah was going from his house to Poi Bazar and at a distance of 10/15 yards Najeebullah, son of Paidin and Allauddin, son of Hassan Khan were also going to Poyi Bazar behind him when Najeebullah and Allauddin reached at Poyin Naddi, meanwhile three accused persons namely Sayed Muhammad, son of Tasleem, Shabbir, son of Haji Zarin and Khayal Muhammad, son of Sayed Muhammad cast Dummar equipped with pistols came on a motorcycle and started firing on Azizullah in a result where of Azizullah received severe injuries and fell down. Najeebullah and Allauddin reached the spot and took the injured Azizullah to Sinjavi Hospital but the injured Azizullah succumbed to the injuries and expired. Hence, the crime report.
3. I have heard the arguments advanced by the learned counsel for the parties and also
gone through the record with their valuable assistance.
4. Though at the bail stage, the deeper appreciation of material available on record is
unwarranted, and only the court has to form its opinion tentatively on the basis of the
available record, but it is also true that the bail application cannot be decided in a vacuum
rather a bird's eye view is required to be taken.
5. After a tentative assessment of the record, it is true that the deceased Azizullah
received firearm injuries and later on succumbed to the injuries but equally true is that as many as three accused were charged for the occurrence with the allegation that the accused/
applicant along with acquitted accused Khayal Muhammad and co- accused Shabbir (on bail)
made firing upon the deceased Azizullah and effective role was attributed to all the accused
persons. The record told that after facing trial the co -accused Khayal Muhammad was
acquitted from the charge by the trial court on 30.03.2024 and subsequently the co- accused
Shabbir was arrested and was enlarged on bail by the trial court on 29.06.2024. All the accused were ascribed similar role.
6. The rule of consistency, or in other words, the doctrine of parity in criminal cases,
including bail matters, recapitulates that where the incriminated and ascribed role to the accused is one and the same as that of the co- accused then the benefit extended to one
accused should be extended to the co -accused also, on the principle that like cases should be
treated alike, but after accurate evaluation and assessment of the co -offenders' role in the
commission of the alleged offence. While applying the doctrine of parity in bail matters, the Court is obligated to concentrate on the constituents of the role assigned to the accused and then decide whether a case for the grant of bail on the standard of parity or rule of consistency is made out or not. In the case in hand all the accused persons nominated in the FIR were attributed the same role that they made firing upon the deceased who received injuries, however, one of the accused persons Khayal Muhammad was acquitted from the charge after being given benefit of doubt by the trial court and the other accused namely Shabbir has been granted bail by the trial court. In my tentative assessment, the applicant has not only made out a case of further inquiry but he is also entitled to be enlarged on bail in view of the rule of consistency.
7. A bare perusal of the record reveals that one ground raised by the learned APG was
that the accused/ applicant remained absconder after the incident. It is now settled that an accused can be granted bail if the case of the applicant is otherwise made out on merits and mere absconsion would not come in his way. In the case titled as Mitho Pitafai v. State (2009 SCMR 299), the August Supreme Court held that mere absconcion is not conclusive proof of guilt of an accused person. It is only a suspicious circumstance against an accused that he was found guilty of the offence.
8. The custody of the applicant would not advance the case of the prosecution in any
manner. Otherwise, the trial court would resolve the authenticity of the accusation after
recording evidence. I am constrained to give any finding at this stage, lest it may prejudice the case of either of the parties.
9. For the above reasons, this application is accepted, and the applicant, namely Sayed
Muhammad, son of Tasleem, is granted pos tarrest bail in FIR No.19/2022 dated 06.12.2022 of Levies Thana Sinjavi, District Ziarat under sections 302 and 34 P.P.C. subject to furnishing bail bond in the sum of Rs.10,00,000/ - (Rupees ten lacs) with PR bond of like
amount to the satisfaction of Additional Registrar of this court/trial court.
10. It is, however, clarified that observations made hereinabove are just tentative in
nature and strictly confined to the disposal of this bail application.
JK/108/Bal. Bail granted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.