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Criminal Bail Application No.443 and Miscellaneous Application No.697 of 1987, decided on 14th April, 1987.

---S.497--Penal Code (XLV of 1860), S.302--Bail, grant of--F.I.R. clearly showing that applicant was neither armed with any weapon nor had caused any injury -to deceased or witnesses--Applicant also not shown- present at time of incident in the Court--Counter F.I.R. lodged by co-accused not showing that applicant was present at the time of incident or he participated in the crime--Applicant's case identical to that of co-accused, already allowed bail--Applicant, held, was also entitled to bail, in view of principle of consistency--Bail allowed.

Muhammad Fazal alias Bodi v. The State 1979 S C M R 9 and Abdul Salam v. The State 1980 S C M R 142 ref.

M.A. Kazi for Applicant.

A.A. Mohamedaly, Addl .A.-G for the State.

The applicant is facing trial under sections 302, 307, 147, 148 and 149, PPC, in crime No.407 of 1985 of P.S. Kharadar, Karachi, before the learned IInd Additional Sessions Judge Karachi (South).

The brief facts of the present case are that on 21-12-1985 complainant Jehangir lodged a report at 1-30 p.m. which reads as under .----

"I am P.A. of Mashkoor Ahmed in National Bank of Pakistan. On 8-12-1985 our Bank's election was held, and in that election our union employees front won, and labour group was defeated. Today on 21-12-1985 at about 12-15 hours, when I and Gulfraz were sitting in our office, one boy gave me information that Nasir, Rehan, Mirza Rafiq Baig, Rehan and Saeed were beating my brother Zahir, my younger brother Asghar was also with Zahir. On this information I and Gulfraz came down from the gate of lift. We saw Zahir and Asghar injured. I and Gulfraz came forward for their rescue, then saw that Nasir fired bullet shot with a revolver on the temple of my brother Zahir and Zahir fell down, after this Rehan, Saeed, Sookhi, Nasi Javed, and others whom I can recognize by face started firing; and attacked with knives, I received injuries on my rib. Sookhi red a bullet shot on the back of my brother Asghar. I am filing this case against the above persons that they had injured me and my brothers with revolver and knives and also the,, have killed my brother Zahir Ahmed. The statement is correct."

On the other hand co-accused, M. Nasir Siddiqui after his arrest lodged a counter F.I.R. at 1-35 p.m. which reads as under:------

"I am residing on the above address and working in National Bank of Pakistan, main branch in cash Department as a Head Cashier. I am also a worker in labour Union. On 18-12-85, on Wednesday I had gone to attend the marriage of Yousuf Bahi in Rangoonwala Mehal Dhoraji Colony Karachi. Jehangir and others had also come there, Jehangir called me outside the Mehal and told me that I should not work for any union. On this Jehangir fired many shots from revolver on me. But 1 escaped and snatched the revolver from Jehangir and handed over the same to Shakil, the brother of Yousuf. At the time of snatching the revolver, triger hit my left hand palm and I got an injury on my left side hand's palm. The people settled the dispute. In that incident one Shahid had received injury from the bullet. Today i.e. 21-12-1985 at about 12-15 hours, I alongwith Sartaj, Saeed and Rehan etc. were going towards a Pan shop situated in front of National Bank of Pakistan, we had come from our department, Jehangir, Gulfraz and 10/15 other persons came, they were armed with revolvers and pistols and they started firing on us. Saeed got a bullet injury; a bearded man also fired from the revolver, I snatched his revolver, but the other people attacked us. On this I and Sartaj went inside the Chartered Bank, Police came there and arrested us from there and recovered one revolver and one knife. I am filing this case against Jehangir and Gulfraz and others that they attacked me for the purpose of murder with revolver and knives and also injured my, companion Saeed."

The police after necessary investigation challaned the two cases before the Court. Co-accused Sartaj, Saeed Ahmed Khan, Javed Siddiqui, Hannan and the present applicant Mirza Rafiq Haig moved bail application before the trial Judge which was allowed, and they were ordered to be released on bail vide order dated 9-1-1986, while accused Rehan was subsequently released on bail on 9-2-1986.

On a suo motu reference, my learned brother Abdul Qadeer Chaudhry, J. while hearing bail application No.276/1986 and Cr.S.M. Revision No.28 of 1986, set aside the order dated 9-1-1986 whereby anticipatory bail granted to the present applicant and others was recalled. The relevant observations of the said order are as under----

"I therefore set aside the orders passed by the learned Additional Sessions Judge on 9-1-1986 and 9-2-1986. The bail granted to these respondents is recalled. However, they shall be at liberty to move fresh bail application before the trial Judge after material witnesses have been examined."

The present applicant, Abdul Hannan, and Rehan filed Petition for leave bearing No.36-K/86 and 74-K/1986 before the Hon'ble Supreme Court of Pakistan, in which co-accused Abdul Hannan was granted bail, while application of present applicant Mirza Rafiq Baig was dismissed as he was arrested by that time, and therefore, the Hon'ble Supreme Court passed order regarding him in the following terms:---

"Since we are not considering the request for pre-arrest bail of petitioner Mirza Rafiq Baig for the reason that he has by now been arrested, and his application for pre-arrest bail has therefore been rendered infructuous, it will be open to him to apply to the trial Court for grant of bail in the normal course under section 497 of the Code."

That the applicant applied for bail before the learned IInd Additional Sessions Judge, Karachi (South), but the same was refused, hence he has filed the present bail application.

I have heard Mr. M.A. Kazi, learned counsel for the applicant and Mr. A.A. Muhammad Ali learned Additional A.-G. for the State and have also gone through the case papers.

The contention of Mr. M.A. Kazi, Advocate is that in the later part of the F.I.R. no overt act has been assigned to the applicant and that his case is identical to that of co-accused Abdul Hannan who has been released on bail by the Hon'ble Supreme Court vide order dated 4-12-1986.

Mr. A.A. Muhammad Ali learned A . A .-G. has frankly conceded to the grant of bail in view of the above circumstances of the case and order passed by Hon'ble Supreme Court granting bail to co-accused Abdul Hannan.

I have considered the contention of the learned counsel and have also gone through the order passed by the Hon'ble Supreme Court. I have also gone through the police papers. The F.I.R. lodged by Jehangir brother of deceased Zahir shows that when he reached at the wardat alongwith Gulfraz, they saw Zahir and Asghar injured, he and Gulfraz came forward to rescue and saw that Nasir fired revolver shot which hit on the temple of Zahir, and Zahir fell down. After this Rehan, Saeed, Sokhi, Nasir, Javed and. others whom he can recognize by face started firing, and attacked with knives. He received injuries on his rib, Sokhi fired a bullet shot at his brother Asghar. The bare reading of above potion of the F.I.R. clearly shows that it is not alleged that the present applicant was armed with any weapon, or he caused any injury to deceased and P.Ws. Although in the beginning of the F.I.R. it is alleged that at about 12-15 p.m. he and Gulfraz were sitting in their office, when one boy informed them that Nasir, Hannan, Mirza Rafiq Baig, Rehan and Saeed were beating Zahir, and his younger brother Asghar was also with. Zahir. The counter-F.I.R. lodged by co-accused Muhammad Nasir Siddiqui does not show that the applicant Mirza Rafiq Baig was present at the time of incident and he participated in the incident. In view of the above position the case of present applicant Mirza Rafiq Baig is identical to that of applicant Abdul Hannan, and therefore, he is I entitled to bail in view of the principle of consistency. In Muhammad Fazal alias Bodi v. The State 1979 S C M R 9 it was held that "that the petitioner should be released on bail on the principle of requirement of consistency in. same case and for the similar reasons that the co-accused to whom a role similar to that of the petitioner was attributed had been so released".

In Abdul Salam v. The State 1980 S C M R 142 it was held "that in view of the fact that there was no distinction between the case of the petitioner and case of co-accused, the privilege of bail should not have been refused to petitioner. That the Courts are to maintain equality of treatment between persons placed in similar situations and similar circumstances".

In view of the 'above factual as well as legal position I am of the considered view that the applicant has been able to make out the case for bail, and therefore, I direct that the applicant shall be released on bail on furnishing surety in the sum of Rs.50,000/- with P.R. bond in the like amount to the satisfaction of the trial Court.

S.G.D./R-22/K Bail allowed.

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