2024 SCMR 1071
PLJ 2024 SC (Cr.C) 1
[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.]
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”); w
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?
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 Pakistan 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. 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.
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.
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.
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. 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. 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. 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.
Crl.P.298/2023
Mohammad Atif v. The State
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